Monday, March 9, 2015
Idaho is among a handful of states known as community property states. Because of its designation as a community property state, many believe that, in the unfortunate event that they go through a divorce, all of the property they own is divided equally between them and their soon-to-be ex-spouse. While that is the case with some couples' property, it does not unequivocally apply to each and every piece of property in the marriage.
Idaho law recognizes a distinction between marital property and separate property. In a divorce action, marital property is split between the spouses while separate property goes independently to the owning spouse. Generally, any property either spouse owned before the marriage is considered separate property. Separate property also usually consists of items a spouse receives as a gift or individually inherits, even if it is during the marriage. Additionally, if a spouse acquires new property during the marriage through the proceeds of her separate property, that property likely remains her sole possession. The property that does not fall into those three separate property categories is generally considered marital property; however, property can change designations during the marriage.
Despite the law identifying which property is marital property and which property is separate property, many divorcing couples continue to disagree as to what category some property falls into. It is important to have an attorney that can help a divorcing spouse navigate the sometimes-complicated community property laws. A diligent lawyer can help a spouse ensure that the division of property is fair, reasonable, and in accordance with the law. At Jones and Swartz, PLLC, we passionately advocate for our clients’ interests and our attorneys are there to answer questions about Idaho law every step of the way.
Posted by eswartz at 3/10/2015 4:55:00 AM
Sunday, March 1, 2015
Sometimes, a problem involves the law, but that does not necessarily mean litigation. Sometimes problems just need creative legal solutions. That takes creative lawyers and parties to the problem who value a mutually agreeable resolution over being found to be “right” in a court of law. While Jones & Swartz lawyers base in Boise litigate cases when necessary, they also take pride in their ability to assist clients with finding a creative legal solution.
Imagine there was one orange, but two people who wanted it. Both parties are willing to go to court to get it. There are lawyers who will take the matter right to court. Jones & Swartz lawyers will, at least, inquire if taking it to court is the only and best option. After all, by the time the dispute makes its way through court, the orange is likely to be rotten and useless to both parties fighting over it, and they will both have paid a lot in attorney fees and costs for nothing.
The party who hired Jones & Swartz is already benefiting from creative legal solutions by hiring Jones & Swartz, but for the other party to benefit as well, their lawyer needs to be more concerned about their client’s wishes than running up lawyer fees. So, let’s say the other party hires a lawyer who is willing to at least talk through things to learn if litigation is the only option. The parties and lawyers learn that both parties want the orange and all of it. As such, splitting the orange in half will not work. The lawyers and parties cannot stop there. They need to learn why each party wants the orange and whether each party’s desire excludes the other party’s desire. This takes cooperation, persistence, good lawyers to help clients focus on goals, and, best of all, not as much in attorney fees as would be spent in litigation.
Turns out, one party needs the whole orange to make orange oil. The other party wants to make juice. Turns out that neither desire excludes the other and both parties can get what they want. Orange oil is made from the peel of the orange, both the fruit. Orange juice is made from the fruit, not the peel. Now, the lawyers get to work drafting a settlement agreement to memorialize the creative legal solution of transferring ownership of one part of the orange to one party and another part of the orange to another party.
Not every dispute is as simple of this example, but it is worth at least making the inquiry into whether it could be. Look for creative legal solutions before looking to litigation. Look to Jones & Swartz’s lawyers for both.
Posted by eswartz at 3/1/2015 7:19:00 PM
Sunday, February 22, 2015
People often say that they want the best injury lawyer for their claim. I can’t say that I blame them. I, too, would want the best lawyer handling my claim. So, who is the best injury lawyer?
Believe it or not, the best injury lawyer is not necessarily the lawyer plastered all over the phone book. The best injury lawyer is not necessarily the lawyer paying the most in google ad words. The best injury lawyer is not necessarily the lawyer with television ads. The best injury lawyer is not necessarily the lawyer who helped a family member or friend with their claim.
The best injury lawyer is a lawyer who is responsive to your needs, a lawyer who you feel comfortable with and trust, and a lawyer who is competent to handle your claim. So, how to do know who that is? Meet them. Meet with many lawyers. Get a feel for how they interact with you. See their office space to get a sense of who they are.
You are likely to be working with the lawyer you select for a minimum of many months, if not many years. Select a lawyer you feel is going to be as easy to work with on the day they seek your business all the way through your claim. And, if you choose the wrong lawyer, do not be afraid of switching. You need to look out after your own best interests. So, first thing’s first – find a lawyer who agrees that you come first.
At Jones & Swartz PLLC, we strive to put our clients’ first. We assign two attorneys to each claim along with a paralegal. With three points of contact for our clients, it is our hope that we can be available and responsive to our clients’ needs. Calls are returned and emails are responded to and face-to-face meetings are always welcome.
Injury claims can be difficult situations for clients. At Jones & Swartz PLLC, we strive to make the injury claim process as easy as possible for the client. It is out hope that our way of handling injury claims allows our clients to focus on getting better and getting back to being the person they were before they were injured.
Posted by eswartz at 2/22/2015 6:24:00 PM
Tuesday, January 27, 2015
What is the value of your personal injury claim? It depends. The value of your personal injury claim against the person who caused your injuries can include damages like medical bills, lost wages from missed work, or use of sick leave or comp-time as a result of the accident. If you suffer from physical or psychological injuries into the future, the value of your personal injury claim can include money for future medical treatment and future pain and suffering. The value of your personal injury claim might also include other losses like reimbursement for mileage to and from doctor appointments, child care, or other costs incurred as a result of being injured and not being able to do daily activities that you used to do before being injured. These types of damages are called economic or special damages.
Pain and suffering, loss of enjoyment of life, and inconvenience as a result of the accident is another type of damages. These damages are called non-economic or general damages.
The value of your personal injury claim depends upon how badly you were injured and how being injured impacted your life. Only you can really know the value of your claim. But, unfortunately, you are not the one who gets to decide what the person at fault, or their insurance company, will pay you.
The insurance company will only pay what they think your claim is worth. The value that the insurance company places on your claim is affected by every aspect of you injuries and loss. If the insurance company does not understand your claim, the insurance company will not pay you what your claim is worth. If the insurance company thinks a jury in Boise, Idaho won’t give you any money for your claim, then the insurance company is not going to pay you what your claim is worth.
Did you know that Idaho law also dictates what your claim is worth? It is true. Idaho’s legislature has limited the amount of non-economic damages that an injured party can get. The cap is currently set at $324,478.18. That’s right. A person can be rendered completely disabled and suffer pain for the rest of their lives, and Idaho law only allows them $324,478.18 for their general damages. This is true even if a jury wants to award more. A judge would be required by Idaho law to lower the amount that a jury awarded in non-economic damages in excess of $324,478.18.
Of course, that assumes that a jury can understand the magnitude of a person’s injuries. Often, members of a jury have not been through the same or similar experience as an injured person. As a result, juries often have a difficult time calculating a sum of money that is reasonable to compensate a person for their injuries. A jury member’s perception of a dollar may also impact how they value a claim. The value of a dollar to a jury member who makes minimum wage is very different than a jury member who make an executive’s salary.
Other things can drastically impact the value of your claim is whether your insurance company or medical providers have subrogation interests or liens placed against a settlement of judgment. While these interests can sometime be negotiated down, these types of claims impact the value of an injured person’s claim.
With all these challenges to claim valuation, an injured party’s best bet to hire an experienced injury attorney. An experience injury attorney will know how to minimize potentially negative aspects and challenges to your claim while maximizing your recovery.
Posted by eswartz at 1/27/2015 8:08:00 PM
Friday, January 16, 2015
Undue influence often gets confused with duress. While both concepts may result in making an agreement, Trust, or Will, unenforceable, the concepts are very different.
Duress is focused on conduct at the time of the execution of an agreement. It is forceful wrongful conduct apparent from the immediate circumstances surrounding the execution of a document. Undue influence is subtle, is not likely physical present at the time of the signing of a document, and usually cannot be identified without examining the totality of the circumstance leading up and following the execution of a document.
Idaho Civil Jury Instruction on Duress reads as follows:
Duress consists of oppressive, coercive or wrongful acts or conduct on the part of one party towards another that was intended to overcome the other party’s free choice of decision to enter into the contract. The party oppressed must be overwhelmed by such conduct, or must believe there is no means of relief or other alternative to submission.
To be voidable on the grounds of duress, an agreement must not only be obtained by means of pressure brought to bear, but the agreement itself must be unjust, unconscionable, or illegal; the defense of duress cannot be predicated upon demands which are lawful, or the threat to do that which the demanding party has a legal right to do. Liebelt v. Liebelt, 118 Idaho 845, 848, 801 P.2d 52, 55 (Ct. App. 1990). Generally, the demand by one party must be wrongful or unlawful, and the other party must have no means of immediate relief from the actual or threatened duress other than by compliance with the demand. Id.
In contrast, in order to show undue influence “it is not necessary to prove circumstances of either actual domination or coercion; that the only positive and affirmative proof required is of facts and circumstances from which undue influence may be reasonably inferred… .” In re Lunders’ Estate, 74 Idaho 448, 454, 263 P.2d 1002, 1006 (1953) (citing In re Estate of RANDALL, 60 Idaho 419, 421, 93 P.2d 1, 1 (1939). In Gmeiner v. Yacte, the Court described a large number of factors that must be considered when determining undue influence:
Among the factors taken into consideration in determining the existence of undue influence are the age and physical and mental condition of the one alleged to have been influenced, whether he had independent or disinterested advice in the transaction, the providence or improvidence of the gift or transaction, delay in making it known, consideration or lack or inadequacy thereof for any contract made, necessities and distress of the person alleged to have been influenced, his predisposition to make the transfer in question, the extent of the transfer in relation to his whole worth, failure to provide for his own family in the case of a transfer to a stranger, or failure to provide for all of his children in case of a transfer to one of them, active solicitations and persuasions by the other party, and the relationship of the parties.
Gmeiner v. Yacte, 100 Idaho 1, 7, 592 P.2d 57, 63 (1979) citing 25 Am.Jur.2d Duress and Undue Influence § 36 at 397 (1966). A result is suspicious if it appears “unnatural, unjust or irrational.” A property disposition which departs from the natural and expected is said to raise a “red flag of warning,” and to cause the court to scrutinize the entire transaction closely. Gmeiner, 100 Idaho at 7, 592 P.2d at 63(internal citations omitted).
Posted by eswartz at 1/17/2015 12:23:00 AM