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Lifetime alimony… in Texas.

AlimonyNo, that’s not a misprint. And, while lifetime spousal support after divorce is certainly not the norm, Texas courts do have the power and authority to order alimony (we call it spousal maintenance) if specific conditions are met, including the obligation to make spousal maintenance payments for as long as the recipient continues to meet certain criteria.

In general, a spouse seeking alimony must be “eligible” to receive the maintenance support. When parties divorce in Texas, not only does the court divide community property, but it also has the discretion and power to order recurring payments from one spouse to the other in the event that the spouse seeking maintenance will lack sufficient property (including separate property) to provide for his/her minimum reasonable needs.

Interestingly, there is no definition of “minimum reasonable needs” in the Texas Family Code. Accordingly, the courts are faced with a fact-specific analysis in each case. In this regard, courts generally consider evidence of the following expenses to be part of the spouse’s reasonable minimum needs: rent/mortgage, property taxes, automobile payments, utilities, gasoline, groceries, drugs and medicine, clothing, and child care costs.

Next, assuming a spouse satisfies the first element of proving their eligibility for post divorce maintenance, the spouse seeking alimony must also pass the second prong of the eligibility test by establishing one of the following four pathways to receive the support.

  1. Evidence that the requesting spouse is the victim of family violence resulting in a conviction or deferred adjudication that occurred within 2 years before suit was filed or while pending;
  2. Evidence that a disability exists which prevents the requesting spouse to earn sufficient income due to an incapacitating physical or mental disability;
  3. A marriage that has lasted at least ten years, and the requesting spouse is unable to earn sufficient income to meet his/her minimum reasonable needs; or
  4. The requesting spouse is caring for a disabled child which causes the spouse to be unable to earn sufficient income.

Once both prongs of the eligibility test have been met, the court must determine the duration of support. There is a presumption that courts will limit support payments to the shortest reasonable period of time necessary for the spouse seeking alimony to earn sufficient income to provide for their own minimum reasonable needs. Indeed, the legislature has established certain periods of time for the maximum duration of support as follows:

  1. if the basis for spousal maintenance is an act of family violence, or if the length of marriage is at least ten years, but less than 20 years, then the court may only allow support for a maximum period of five years.
  2. If the marriage was at least 20 years in length, but less than 30 years, then the duration of alimony can last no more than 7 years.
  3. If the marriage is 30 years or more at the time of divorce, then the alimony can be awarded for no more than 10 years.
  4. However, if the spousal maintenance award is based upon a spouse’s inability to earn sufficient income due to an incapacitating physical or mental disability — there is no maximum length of time for the award of post divorce spousal maintenance. Instead, the court maintains jurisdiction to order the support as long as the spouse meets the eligibility criteria.

Finally, once it is determined that a spouse is eligible for maintenance and the duration of time has been set for the payments to be made, the court must then set the dollar amount of spousal maintenance (alimony) per month. The maximum amount of support to be awarded to the requesting spouse is based upon the following: either 20% of the obligor’s average monthly gross income; or $5,000 – whichever amount is less. There is no requirement that spousal maintenance completely eliminate a requesting spouse’s shortfall of their monthly financial needs.

In conclusion, the amount of alimony to be awarded in a divorce is determined on a case-by-case basis, and the court is guided by a multitude of factors, including the length of marriage and the actual needs of the requesting spouse. For these reasons, and because the court maintains jurisdiction to modify or terminate the alimony award even after the divorce is final, it is important to discuss your individual situation with a family law attorney familiar with these subjects.

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Marriage is in the Air

Marriage is in the air.  It seems like every time I look at Facebook someone I know is getting married or engaged.   There are engagement photos, pictures of the rings, rehearsal dinners,  little ring bearers, flower girls, photos of the bride and groom, dancing at the reception,  chocolate covered strawberries  and of course cake … mmm I love cake.   It takes a lot of planning and coordination to put on a wedding. Part of that planning should include discussions about premarital agreements.  Recently, I have had multiple individuals and couples ask about premarital agreements or “prenups” in preparation for marriage.   Therefore, I’m writing this blog to give a quick rundown of what a prenup is, how it works and who should get one.

What is a Premarital Agreement?

A premarital agreement is a written contract between two people before marriage.  On the flip side, a postnuptial agreement is a written contract between two people that is entered into after marriage. However, both agreements set out the terms for the possession of assets, treatment of future earnings, control of property, and potential divisions of wealth, property, and assets if the marriage is later dissolved.  Simply stated, the agreement, whether it is pre marriage or post marriage, dictates how money will be distributed during marriage and, in the worst case scenario, divorce. Without a prenup, state law will determine these matters. A prenup simply allows the couple to follow their own rules, in as much detail as they wish, rather than have state law apply to certain divorce issues.

What  can a Premarital Agreement or Postmarital Agreement do for you?

Most people know that having a prenup can save substantial time, energy, and money by eliminating the need to dispute the division of wealth in court in case of divorce.  However, a prenup has additional benefits.

  1.  First, it can define who is responsible for different financial duties during the marriage and how those matters will be carried out.
  2. Secondly, if you or your spouse has significant debt, getting a prenup can keep you from having to take on the other’s debt.
  3. Third, a prenup can be used to keep finances separate, because in Texas all income earned during the marriage is considered community property.  Therefore, any savings or money on deposit will be split 50/50 between the parties at the time of divorce.
  4.  Fourth, a prenup can stipulate who will inherit your property.
  5. Fifth, a prenup can stipulate what will be done with money you or your spouse inherits.

Without a prenup, state law will determine these matters. A prenup simply allows the couple to follow their own rules, in as much detail as they wish, rather than have state law apply to certain divorce issues.

Who should get a Premarital Agreement?

A prenup and the discussions that go with it can help ensure the financial well-being of the marriage and, hence, the stability of the union. Think of it like an insurance policy that you hope you will never need. However, certain groups of people can particularly benefit from a prenup.

  1. If you have substantial assets, such as property, stock or retirement funds.
  2. If there is a large disparity in assets between you and your future/current spouse.
  3. If you expect to inherit money in the future.
  4. If you anticipate a large income increase, if you anticipate your business taking off or if you are pursuing a degree in a profitable career.

In the event of a divorce, a prenup typically helps eliminate some of the emotion and resultant disputes that are naturally involved.

What should be covered in a premarital agreement?

Areas that should be covered in a prenup:

  1. Prenups should define what will be considered separate property, meaning it will only belong to one spouse.  This often includes assets acquired before marriage or is inherited.
  2. Dictate if a divorce does occur if spousal support will be paid.
  3. Determine how property acquired jointly, such as a house, will be divided in case of divorce.
  4. Define how child support will be paid or determined, if the couple has children together.

Conclusion

While you are planning for marriage, by discussing your current and future financial situation with your future partner, make sure you discuss the possibility of a prenuptial agreement.  Divorce is unfortunately very common in the United States. In 2009, more than one out of every two married couples got divorced. That percentage goes up for second and third marriages. Divorce affects millions of families every year, including children of past and future relationships. A prenup is simply another prudent method to manage one’s financial affairs depending on potential future events, just like insurance or other financial planning tools. A prenup is not a sign of distrust or that one doesn’t believe the marriage will last. Rather, it is a sign of mature and wise management of one’s property and wealth.  When coming to Bailey & Galyen to discuss a prenup, please bring cake, as our lawyers’ expertise extends to helping you decide the best cake to have at your wedding reception.   With a prenuptial and/or postnuptial agreement, the success of your financial future will be secured with our expertise.

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Dying while waiting for Social Security Benefits

Dying while waiting for Social Security Benefits

Denials are a part of the disability process.  Sometimes a denial comes because the case is not completely worked up: no recent tests; no treating doctors willing to give opinions regarding disability; or conditions which are harder to evaluate over mail correspondence like chronic pain. Other times the denial is due to an error made by the examiner who evaluated the claim or the reviewing doctor who missed or ignored key pieces of information.

All attorneys’ get the heart broken calls from their clients after they receive a denial.  The questions are the same: Why doesn’t SSA believe me? Does this mean I won’t ever get disability benefits? I know people much better off than me who got approved the first time, why not me? Even more upsetting: I’m about to lose my home/car/I can’t afford treatment/my medications.

If you’ve been practicing in the field of disability for more than a minute, you’ve had a client who died from their condition while waiting to be approved for benefits, or who has chosen to take their own life out of desperation. Living with the loss of income, ability to engage in activities you enjoy, and/or living with chronic pain or mental illness can be almost too much for people to bear and too often the denial letter that comes in the mail can be the final straw. It is always heartbreaking to get that call from a family member informing you that your client has passed away, regardless of the reason.

The fear for many attorneys is that the longer delays in processing and adjudicating claims that SSA is reporting as of late, may lead to an increased chance of claimants either passing away or choosing to take their own lives while waiting for SS benefits.

Not only are delays causing getting worse, but the number of cases being awarded has declined as well.  Allowance rates at the initial levels have been around 33% the past few years. Hearing allowances are down to 48% nationally.  The allowance rates have declined for both levels over the past 5 years although the standards for disability have not changed.

This means that each and every day, based on the number of applicants and the denial rate, approximately 400 people are getting denial letters in their mailbox.*

The suicide rate has risen steadily in the US every year since 1999.  The majority of the people who take their own lives are middle aged. The majority of people applying for disability are in this same age range.  Aging baby boomers coupled with crippling disabilities makes the situation very scary. Attorney’s have identified this as a dangerous combination, and have made this known to the powers that be at SSA, but as of yet, nothing has been done to lessen the risks that claimants may pass away before receiving benefits.

* The statistics come from, “The Neglected Suicide Epidemic among Social Security Disability Applicants” by N. David Kornfeld.

Please visit our website: http://thetexasattorn.wpengine.com/social-security-disability/ or contact one of our Bailey & Galyen offices for additional information.

 

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Misclassified Employees

By Paul F. Wieneskie

McClatchy Newspapers, the parent company of the Fort Worth Star-Telegram, just concluded a weeklong series of reports on “misclassified” employees. This practice involves taking workers who should be classified as employees and classifying them as independent contractors. This allows the employer to avoid paying social security and unemployment taxes, to avoid withholding income tax payments from the employee’s wages, and to avoid paying for workers compensation insurance. It is also flatly illegal.

Almost none of these misclassified employees pay their own Federal income taxes or self-employment taxes. If they are injured on the job, they have no workers compensation coverage to pay for their medical expenses, and no social security disability if they are permanently disabled. Not only are the individual employees hurt, but companies that play by the rules and obey the law are put at a competitive disadvantage because companies illegally misclassifying their employees can underbid them on projects.

So, when is a worker an employee, and when is that worker an independent contractor? The key distinction lies in who controls the details of the worker’s work. If the employer controls the details of the work, tells the employee went to report for work and when to leave and when the worker can go on break and when he must return, that worker is an employee. If the employer also provides all tools and safety equipment, the worker is an employee.

On the other hand, if the worker controls the details of his work, decides when to come and go, and brings his own tools and safety equipment to the job site every day, that worker can probably be legally classified as an independent contractor. True independent contractors pay their federal income taxes in quarterly estimated tax payments, along with the full share of self-employment taxes (which otherwise is split between the employer and employee). The independent contractor is responsible for his own medical insurance and benefits.

According to the newspaper series, the practice of misclassifying employees as independent contractors has become quite widespread. As a result of all the media attention, not only will federal, state and local governments be watching for this practice much more carefully but also their competitors that have been playing by the rules will be much less hesitant to turn in companies that continue with this illegal practice. If you are a business owner and have questions about whether your workers are accurately characterized-either as employees or independent contractors-you should consult with an attorney to make sure your practices comply with the law. If you are a worker who believes that you have been misclassified as an independent contractor, you should contact an attorney, the Texas Workforce Commission or the US Department of Labor for assistance.

Businesses that misclassify their employees as independent contractors are cheating us all, but most of all their misclassified workers. Hopefully this practice is on the way out.

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Taking A Breath or Blood Specimen

When it comes to driving while intoxicated, a law enforcement officer can take a child into custody under the same laws and circumstances as an adult. The same elements that must be proved to convict an adult in adult court would be required to adjudicate a juvenile in juvenile court. But for a law enforcement officer, how he or she obtains the evidence may be quite different than it is for an adult. In the usual child custody situation, the Family Code establishes strict restrictions on law enforcement interactions with children. It delineates exactly what an officer can do with a child once he or she is in custody, where he or she can be taken, the amount of time he or she can spend with an officer, as well as who must be notified and when. But the Code also contains certain special provisions just for children involved in operating a motor vehicle under the influence. These special provisions don’t do away with the strict Family Code requirements of juvenile arrest; they only postpone them.

The term “child” or “children” apply to persons between the ages of 10 and 17. The Texas Alcoholic Beverage Code Section 106.041 provides that a minor commits an offense if the minor operates a motor vehicle in a public place, or a watercraft, while having any detectable amount of alcohol in the minor’s system. This is not a DWI or an OWl-related offense. This offense is committed by a minor who operates a motor vehicle in a public place while having “any detectable amount of alcohol” in his or her system. Thus, all the elements are identical to a DWI offense except that any detectable amount of alcohol constitutes an offense rather than needing the alcohol consumption to rise to the level of intoxication.

The Texas Transportation Code Section 724.012(a) authorizes the taking of a person’s breath or blood if they are arrested for operating a motor vehicle while intoxicated or if a minor operates a motor vehicle with any detectable amount of alcohol in their system.

AUTHORIZATION FOR A CHILD’S BREATH OR BLOOD SPECIMEN

The Texas Family Code Section 52.02(c) provides that: “A person who takes a child into custody and who has reasonable grounds to believe that the child has been operating a motor vehicle in a public place while having any detectable amount of alcohol in their system may, before complying with Subsection (a):
(1) take the child to a place to obtain a specimen of the child’s breath or blood as
provided by Chapter 724, Transportation Code; and
(2) perform intoxilyzer processing and videotaping of the child in an adult processing office of a law enforcement agency.”

This provision provides directions to an officer as to where he or she can take a child when there has been a determination that the child has been operating a motor vehicle in a public place with “any detectable amount of alcohol” in his or her system (which would also include an OWl). This provision authorizes a child to be taken to a place to obtain a specimen of the child’s breath or blood as provided by Chapter 724, Transportation Code, and that the child may be videotaped in an adult processing office as opposed to a juvenile processing office. This provision does not dispense with the strict requirements of Section 52.02(a). To take a statement from a child, the officer would still need to comply with Texas Family Code Sections 52.02 and 51 .095. Section 52.02(c) simply allows a procedure for the collection of a breath or blood specimen prior to compliance with Section 52.02(a).

BREATH SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITHOUT ATTORNEY

The Transportation Code Section 724.013 states: “Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”

The Texas Family Code addresses a child’s consent to a specimen in Section
52.02(d) which states: “(d) Notwithstanding Section 51.09(a), a child taken into custody as provided by Subsection (c) may submit to the taking of a breath specimen or refuse to submit to the taking of a breath specimen without the concurrence of an attorney, but only if the request made of the child to give the specimen and the child’s response to that request is videotaped. A videotape made under this subsection must be maintained until the disposition of any proceeding against the child relating to the arrest is final and be made available to an attorney representing the child during that period.”

The first phase of this provision, notwithstanding Section 51 .09(a), creates a special exception to the strict lawyer requirement as set out in Section 51 .09(a). As a result, the provision allows a child to submit to the taking of a breath specimen or refuse the taking of a breath specimen without an attorney if the request and response is videotaped. While the provision clearly makes an exception to the attorney requirement for a breath specimen, no such exception in the statute is made for a blood specimen.

BLOOD SPECIMEN: CHILD CAN SUBMIT OR REFUSE WITH ATTORNEY ONLY
Clearly, without a similar provision creating an exception to the strict requirement of Section 51 .09(a), the requirements of Section 51 .09(a) must be met. This would mean that before a child could voluntarily submit to a blood specimen, the child and his or her attorney would have to agree to give up the child’s rights.

We can then conclude that a child can submit or refuse to submit to the taking of breath test without an attorney [under the requirements of Texas Family Code Section 52.02(d)] and that a child can submit to a blood specimen only with the acquiescence of an attorney [under the requirements of Section 51.09 (a)].

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Modification Cases

In order to change any of the terms of an existing divorce decree or order regarding the conservatorship, visitation or support of a child, a petition must be filed with the court requesting the court to modify the existing order. In general, there are three areas that can be modified: conservatorship (where the child primarily lives), visitation and the child’s possession schedule, and the amount of child support to be paid. Of course, a new order can be put into place when the parties are in agreement regarding the change in any of the above areas. However, when there is not agreement, the following criteria must be met in order to bring a modification case.

In general, when requesting a modification of a previous order, the person requesting the change must show the court that the modification will be in the best interests of the child and that the circumstances of the child, a conservator or other party affected by the order have “materially and substantially changed” since the date of the previous order. With regard to requesting a change in conservatorship or possession and access, there are other more specific criteria that must be met, and these should be discussed on a case-by-case basis with one of our family law attorneys.

When requesting a modification regarding the amount of child support paid by the obligor in a final order, the person requesting the change must again show the court that the modification will be in the best interests of the child and that the circumstances of the child, a conservator or other party affected by the order have “materially and substantially changed” since the date of the previous order. An example of a material and substantial change with regard to modifying the amount of child support paid would be the obligor changing jobs and his or her income going up or down as a result of the job change. As with the modification of conservatorship, possession and access, there are other more specific criteria that must be met when modifying the amount of child support paid by the obligor.

If you are considering modifying the terms of an existing order, please contact one of our family law attorneys to discuss the individual facts of your case and determine the best course of action for you.

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Award Rate for Disability Is Declining

Disability Award Rates are declining:

In 2000, a little over 1.3 million people applied for disability benefits. Of those 1.3 million, nearly 63% ultimately received disability benefits.

Broken down by level; 41% were approved after the initial claim; 13% of those that were denied & appealed were awarded at the reconsideration level; and 73% of those denied who appealed to hearing level were awarded benefits.

In 2005, over 2 million people filed for disability benefits and the allowance rate dropped to 58% overall.

By level; almost 37% were approved at the initial level; of those that were denied and appealed, 8.7% were approved at the reconsideration level; and the award rate at hearing level dropped to around 66%.

In 2010, a record 2,8 million people filed for disability benefits and again the overall allowance rate dropped, this time to 55%.

Again by level; barely 36% were approved at the initial level; only 6.3% of those who appealed the initial denial were approved at the reconsideration level; but the award rate at the hearing level stayed about the same, at 66%.

So as more people are applying for disability benefits, the award rates at each level have declined. This is caused by numerous factors. A lot of new judges have been appointed in the past few years; the bad economy has caused more people to apply for benefits than who might otherwise; the lack of good medical care is making it harder to prove your disability claim to SSA; or because of the poor economy, more people are trying to get benefits on their own without an attorney. Now, more than ever, having a knowledgeable attorney assist you with the disability process appears to be important. The award rate for claimants with attorney’s has always been significantly higher than those who chose to go it alone.

Please visit our website at www.socialsecurityjustice.com or contact one of the Bailey & Galyen offices for additional information.

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New Provisional Waiver

By: Michael Spychalski

The Department of Homeland Security has created a new process that will allow certain spouses, children, and parents of a U.S. citizen to apply for a provisional unlawful presence waiver while in the United States and before departing for an immigrant visa abroad.

To be eligible for this waiver if: 1) you are physically present in the United States; 2) you are at least 17 years of age at the time of filing; 3) you are the beneficiary of an approved immigrant visa petition classifying you as the immediate relative of a U.S. Citizen; 4) you have an immigrant visa case pending with the U.S. Department of State, for which you have already paid the immigrant visa processing fee; and 5) you believe you are, or will be at the time of the immigrant visa interview, inadmissible based on having accrued a certain period of unlawful presence in the United States.

You are not eligible for this waiver if: 1) you do not meet one or more of the requirements listed above; 2) you have a pending I-485 residency application with USCIS; 3) you are in removal proceedings unless your removal proceedings are administratively closed and have not been re-calendared as of the date of filing of the I-601A; 4) you have been ordered removed, excluded, or deported from the United States; 5) you are subject to reinstatement of a prior removal order; 6) the Department of State acted to schedule your immigrant visa interview prior to January 3, 2013, even if you failed to appear or you or the Department of State cancelled or rescheduled the interview on or after January 3, 2013; 7) you do not establish that the refusal of your admission to the United States would result in extreme hardship to your U.S. citizen spouse or parent, or that your application should be approved as a matter of discretion; and immigration has reason to believe that the Department of State may find you inadmissible at the time of your immigrant visa interview for grounds other than unlawful presence.

Next month, I will go into more detail with the new provisional waiver.

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Levels of Appeal in SS Disability Cases

There are several levels of appeal in SS Disability claims.

At the initial and reconsideration levels, the decision is made by a disability examiner in your state. Their job is to collect medical records, send you questionnaires to gather additional information, and sometimes, even send you to an independent doctor to gather information they do not see in your medical records. The majority of claims are turned down at these two levels.
The third level of Appeal is the Hearing before an Administrative Law Judge. Although award rates at this level vary by region and by presiding Judge, the average approval rate is 50% – 60% at this level. This is the level you most desperately need to have an attorney assisting you. This is your final chance to prove your disability claim to SSA.

If you are denied at hearing, the next level of Appeal is the Appeals Council. The only issues the Appeals Council consider are legal errors made by the Judge. They do not re-evaluate your claim to see whether or not you are disabled. Many people call me at this level, but it is many times too late to help. The remand rate (when the AC agrees legal errors were made which affected the outcome) is only around 25%.

Finally, a handful of cases can be appealed to District Court if the AC denies the Request for Review. District Court does not have jurisdiction over SSA, but their, “advisory opinions” are heeded by SSA. However, they hear very few of these cases and the cases that are successful at this level are extremely egregious.

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Children’s Benefits

There are several ways to prove disability for adults, but really only one for minor children. There is the additional requirement of financial need for children’s disability claims as well.

For a child to collect disability, the household income must be under $1,640 per month.
To prove disability for children, regardless of the cause, SSA is looking for what they term, “marked” limitations in two of the following areas or an, “extreme” limitation in one.

A. Acquiring and Using New Information:
a. How are they performing in school?
B. Attending and completing tasks:
a. Can the child complete simple tasks without constant direction?
C. Interacting and relating with others:
a. Can the child form friendships? Can they hold conversations with peers and adults?
D. Moving about and manipulating objects:
a. Does the child have physical limitations that affect his or her ability to dress/write/use objects/feed themselves?
E. Caring for Self:
a. Can the child feed/bathe/dress themselves at or near the level expected for a child of that age?
F. Health and well being:
a. Is the child generally healthy or chronically ill? If chronically ill, does that interfere with their ability to be on grade level in a school setting?

There are rules for children up to the age of 3 for the different types of impairments recognized by SSA, as well as for children aged 3-18.

For additional information, please visit www.socialsecurityjustice.com or call our office at (800) 208-3104 and speak to a member of our Social Security Disability team.

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“Sticks and stones may break my bones but on-line posts may land me in prison”.

“Sticks and stones may break my bones but on-line posts may land me in prison”.
A brief look at the National Trends regarding the use of social media and its affect on legal policy- PART I
By Kristie Walsdorf

The term social media generally refers to any social network sharing internet site. Most recognizably, it includes facebook, twitter, YouTube etc. These are public websites where an individual signs up to participate on its website. Once you become a member, the individual is allowed to share or “post” information on its site and invite whoever you wish to view your material. The ability to limit information and users from what they may view on your site is completely within the creator’s discretion. Although innocuous and friendly use, such as photo sharing or family updates, are abounding, the door is open to use the medium for other limitless, less friendly uses, such as gossip, salacious talk/photo’s, and/or ex-husband/boyfriend bashing. The scenarios are countless. This new technology, in the hands of some computer savvy individuals, is creating a mountain of social and legal challenges, some foreseen and many unforeseen. The power of the internet likened to a baby, is just beginning to crawl, and its full potential and parameters are no where in sight. Thus, the dilemma of how to address these issues is a climb up new and uncharted territory as each side struggles with creating answers about how to cope, correct, and prevent negative outcomes from arising.

One of the negative uses that have begun to attract national attention is the subject of on-line bullying or “Cyberbullying”. After the warning bell was rung with the Columbine High School Shooting tragedy, caution flags were raised about the tangible effects of bullying on society and how we treat and recognize it as a community issue. It was learned after the shootings that the teenage shooters themselves were victims of bullying. Since that time, there have been numerous tragedies of school age children committing suicide after having been bullied on line and in person. In fact, numerous studies have drawn links to bullying and teenage suicide. Thus, there is a renewed focus on recognizing and preventing all forms of bullying of school age children.

The Center for Safe and Responsible Internet Use defines “Cyberbullying” as sending or posting harmful or cruel text or images using the Internet or other digital communication devices. That is an incredibly vague and subjective definition. The struggle over clarifying and what is harmful or cruel speech versus what is actionable and non-protected speech surrounds the current state of the law in this growing field. What some organizations are advocating is actionable speech is in reality protected speech. Writers and speakers of rude or hateful speech are not committing illegal acts. It is well within our protected First Amendment Right to be rude and harsh in and out of public. Arguably, as teenagers spend more time on the Internet and have mobile devices such as iphones/ipads/blackberries, teenagers are more vulnerable to bullying and what they see are personal attacks as it is increasingly easy to carry out the bullying as its effects are felt almost instantly in the palm of their hand and not only in the school yard. In light of that increased exposure to bullying, more teens may be feeling the effects of the bullying which makes it harder for some to take a position that seems to advocate protecting our First Amendment Rights over protecting our children. Naturally, parents of deceased teens cite the links between the bullying and the suicide creating a slew of litigation attempting to hold someone responsible for the terrible tragedies putting the First Amendment in the center of the disputes.

As many of us have school aged children returning this fall, we may recall having to review and sign agreements/pamphlets with the schools regarding bullying and the schools policy towards it. In many cases we were asked to sign and have the children turn back in materials stating that we will ensure our children do not participate in, nor will we tolerate our children acting as bullies in person or on line. Some may have spelled out potential penalties for our children who are found to have engaged in such acts to be disciplined. What you may or may not realize is that there may be long lasting effects of such “agreements” that may have lifelong consequences for our children, up to and including temporary or permanent suspension from school and criminal charges resulting in incarceration, arising from alleged violations of the schools bullying policies. Today, many school districts and state are moving with calculated steps to limit their financial and legal exposure and liability by crafting new policies regarding bullying in order to insulate themselves from potential litigation. This controversy raises numerous constitutional issues. Do you feel that it is fair that school officials may expel or worse press criminal charges against your child for conduct committed outside of school with intangible non face to face contact? Should your son or daughter be suspended for what they say on facebook about a principal or teacher? Shockingly, it is not just teenagers who are committing the bullying against other teenagers. It is also adults bullying other teens and adults bullying other adults. I will examine the state of the law and discuss a few notable cases on the subject.

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Fibromyalgia

Although SSA recognizes joint pain due to arthritis; and pain in general from a variety of conditions; people alleging disability due to fibromyalgia have had trouble establishing their condition in the past since it is subjective in nature. SSA just released a new regulation to help with this.

SSR 12-2p states that Fibromyalgia is a medically determinable impairment when it has been established as required by the American College of Rheumatology.

What this requires is:

1. A history of widespread pain;

2. at least 11 positive bilateral tender points upon exam by a medical doctor;

3. repeated manifestations of 6 or more fibromyalgia simptoms, signs or co-occuring conditions; (ex: fatigue, memory issues, depression or IBS)

4. evidence that other disorders which could have caused the same symptoms have been ruled out.

You still need to be going to your doctor for a while & repeatedly complianing about your limitations, but at least now SSA has to acknowledge your pain and limitations as a result of Fibromalgia. 

Prior to this ruling, some Judges did and others did not. This should unify the evaluation across the Country.

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Are SS Benefits taxable?

Like any good legal answer, it depends.
Back pay = Congress has provided a special provision for lump sum payments that cover several prior years. SEE I.R. Code ch.86(e) It allows the taxpayer to offset the lump sum
SSA will send you a 1099 each year. These forms are often inaccurate and you need to check them carefully.
The basic rule =
Up to 50% of SS benefits are taxable if your total income exceeds a base amount. ($25,000 for single people and $32,000 for married filing jointly)
Up to 85% of SS benefits are taxable if your total icome exceeds a base amount. (over $34,000)

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Compassionate Allowances

Some conditions are accepted as so severe, SSA will automatically award your claim. Whereas generally having a diagnoses is not enough to get disability; if you have one of the following, the diagnosis alone truly is enough for an award of benefits:

1. Acute Leukemia
2. Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
3. Aicardi-Goutieres Syndrome
4. Alexander Disease (ALX) – Neonatal and Infantile
5. Alobar Holoprosencephaly
6. Alpers Disease
7. Alpha Mannosidosis – Type II and III
8. Alstrom Syndrome
9. Amegakaryocytic Thrombocytopenia
10. Amyotrophic Lateral Sclerosis (ALS)
11. Anaplastic Adrenal Cancer – with distant metastases or inoperable, unresectable or recurrent
12. Angelman Syndrome
13. Aortic Atresia
14. Astrocytoma – Grade III and IV
15. Ataxia Telangiectasia
16. Batten Disease
17. Bilateral Retinoblastoma
18. Bladder Cancer – with distant metastases or inoperable or unresectable
19. Breast Cancer – with distant metastases or inoperable or unresectable
20. Canavan Disease (CD)
21. Carcinoma of Unknown Primary Site
22. Cerebro Oculo Facio Skeletal (COFS) Syndrome
23. Cerebrotendinous Xanthomatosis
24. Child Neuroblastoma – with distant metastases or recurrent
25. Child Non-Hodgkin Lymphoma – recurrent
26. Chondrosarcoma – with multimodal therapy
27. Chronic Myelogenous Leukemia (CML) – Blast Phase
28. Cornelia de Lange Syndrome-Classic Form
29. Corticobasal Degeneration
30. Creutzfeldt-Jakob Disease (CJD) – Adult
31. Cri du Chat Syndrome
32. Degos Disease, Systemic
33. Early-Onset Alzheimer’s Disease
34. Edwards Syndrome (Trisomy 18)
35. Eisenmenger Syndrome
36. Endomyocardial Fibrosis
37. Ependymoblastoma (Child Brain Tumor)
38. Esophageal Cancer
39. Ewing Sarcoma
40. Farber’s Disease (FD) – Infantile
41. Fibrodysplasia Ossificans Progressiva
42. Follicular Dendritic Cell Sarcoma – metastatic or recurrent
43. Friedreichs Ataxia (FRDA)
44. Frontotemporal Dementia (FTD), Picks Disease -Type A – Adult
45. Fucosidosis – Type 1
46. Fukuyama Congenital Muscular Dystrophy
47. Galactosialidosis – Early and Late Infantile Types
48. Gallbladder Cancer
49. Gaucher Disease (GD) – Type 2
50. Glioblastoma Multiforme (Adult Brain Tumor)
51. Glioma Grade III and IV
52. Glutaric Acidemia – Type II
53. Head and Neck Cancers – with distant metastasis or inoperable or uresectable
54. Heart Transplant Graft Failure
55. Heart Transplant Wait List, 1A/1B
56. Hemophagocytic Lymphohistiocytosis (HLH), Familial Type
57. Hepatoblastoma
58. Histiocytosis Syndromes
59. Hutchinson-Gilford Progeria Syndrome
60. Hydranencephaly
61. Hypocomplementemic Urticarial Vasculitis Syndrome
62. Hypophosphatasia Perinatal (Lethal) and Infantile Onset Types
63. Hypoplastic Left Heart Syndrome
64. I Cell disease
65. Idiopathic Pulmonary Fibrosis
66. Infantile Free Sialic Acid Storage Disease
67. Infantile Neuroaxonal Dystrophy (INAD)
68. Infantile Neuronal Ceroid Lipofuscinoses
69. Inflammatory Breast Cancer (IBC)
70. Junctional Epidermolysis Bullosa, Lethal Type
71. Juvenile Onset Huntington Disease
72. Kidney Cancer – inoperable or unresectable
73. Krabbe Disease (KD) – Infantile
74. Kufs Disease Type A and B
75. Large Intestine Cancer – with distant metastasis or inoperable, unresectable or recurrent
76. Late Infantile Neuronal Ceroid Lipofuscinoses
77. Left Ventricular Assist Device (LVAD) Recipient
78. Leigh’s Disease
79. Lesch-Nyhan Syndrome (LNS)
80. Lewy Body Dementia
81. Lissencephaly
82. Liver Cancer
83. Lowe Syndrome
84. Lymphomatoid Granulomatosis – Grade III
85. Malignant Brain Stem Gliomas – Childhood
86. Malignant Melanoma – with metastases
87. Malignant Multiple Sclerosis
88. Mantle Cell Lymphoma (MCL)
89. Maple Syrup Urine Disease
90. Mastocytosis Type IV
91. Medulloblastoma – with metastases
92. Merkel Cell Carcinoma – with metastases
93. Merosin Deficient Congenital Muscular Dystrophy
94. Metachromatic Leukodystrophy (MLD) – Late Infantile
95. Mitral Valve Atresia
96. Mixed Dementias
97. MPS I, formerly known as Hurler Syndrome
98. MPS II, formerly known as Hunter Syndrome
99. MPS III, formerly known as Sanfilippo Syndrome
100. Mucosal Malignant Melanoma
101. Multicentric Castleman Disease
102. Multiple System Atrophy
103. Myoclonic Epilepsy with Ragged Red Fibers Syndrome
104. Neonatal Adrenoleukodystrophy
105. Nephrogenic Systemic Fibrosis
106. Neurodegeneration with Brain Iron Accumulation – Type 1 and Type 2
107. Niemann-Pick Disease (NPD) – Type A
108. Niemann-Pick Disease-Type C
109. Non-Small Cell Lung Cancer – with metastases to or beyond the hilar nodes or inoperable, unresectable or recurrent
110. Obliterative Bronchiolitis
111. Ohtahara Syndrome
112. Ornithine Transcarbamylase (OTC) Deficiency
113. Orthochromatic Leukodystrophy with Pigmented Glia
114. Osteogenesis Imperfecta (OI) – Type II
115. Osteosarcoma, formerly known as Bone Cancer – with distant metastases or inoperable or unresectable
116. Ovarian Cancer – with distant metastases or inoperable or unresectable
117. Pancreatic Cancer
118. Paraneoplastic Pemphigus
119. Patau Syndrome (Trisomy 13)
120. Pearson Syndrome
121. Pelizaeus-Merzbacher Disease-Classic Form
122. Pelizaeus-Merzbacher Disease-Connatal Form
123. Peripheral Nerve Cancer – metastatic or recurrent
124. Peritoneal Mesothelioma
125. Perry Syndrome
126. Pleural Mesothelioma
127. Pompe Disease – Infantile
128. Primary Cardiac Amyloidosis
129. Primary Central Nervous System Lymphoma
130. Primary Effusion Lymphoma
131. Primary Progressive Aphasia
132. Progressive Multifocal Leukoencephalopathy
133. Progressive Supranuclear Palsy
134. Pulmonary Atresia
135. Pulmonary Kaposi Sarcoma
136. Rett (RTT) Syndrome
137. Rhabdomyosarcoma
138. Rhizomelic Chondrodysplasia Punctata
139. Salivary Tumors
140. Sandhoff Disease
141. Schindler Disease Type 1
142. Single Ventricle
143. Small Cell Cancer (of the Large Intestine, Ovary, Prostate, or Uterus)
144. Small Cell Lung Cancer
145. Small Intestine Cancer – with distant metastases or inoperable, unresectable or recurrent
146. Smith Lemli Opitz Syndrome
147. Spinal Muscular Atrophy (SMA) – Types 0 And 1
148. Spinal Nerve Root Cancer-metastatic or recurrent
149. Spinocerebellar Ataxia
150. Stiff Person Syndrome
151. Stomach Cancer – with distant metastases or inoperable, unresectable or recurrent
152. Subacute Sclerosing Panencephalitis
153. Tabes Dorsalis
154. Tay Sachs Disease – Infantile Type
155. Thanatophoric Dysplasia, Type 1
156. The ALS/Parkinsonism Dementia Complex
157. Thyroid Cancer
158. Tricuspid Atresia
159. Ullrich Congenital Muscular Dystrophy
160. Ureter Cancer – with distant metastases or inoperable, unresectable or recurrent
161. Walker Warburg Syndrome
162. Wolf-Hirschhorn Syndrome
163. Wolman Disease
164. Xeroderma Pigmentosum
165. Zellweger Syndrome

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