Omaha Law

Tax rules on selling home after a divorce

2007-07-17T19:34:00.001-05:00

http://www.bankrate.com/natl/default_frame.asp?sitekey=oma&link_address=/natl/itax/tax_adviser/20070717_home-sale_divorce_a1.asp

Are You Entitled to a Part of Your Spouse's Severance Package in a Divorce?

2007-07-15T10:49:00.001-05:00

Suppose you are getting divorced. During the marriage your husband or wife lost his or her job and received a severance package. Are you entitled to part of that money? According to the Nebraska Court of Appeals, the answer is yes.

In Malin v. Loynachan, 15 Neb. App. 706 (2007), a Nebraska appellate court addressed this issue for the first time. The Court of Appeals ruled that the portion of the severance package earned during the marriage is considered marital property. The Court also held that the spouse claiming that part or all of the severance package is nonmarital has the burden to prove so.

In Malin, 15 Neb. App. 706 (2007), the husband received a severance package that included $11,022.30 in vacation pay, $98,581.08 in severance pay, a bonus of approximately $1,390.60, and $5,000 in outsource assistance. The severance pay consisted of 1 month's salary per year of service. The husband had worked for the company a total of 88 months, and he was married to the wife for 68 months at the time left his job.

The Court first multiplied the amount of the severance package by 62%, in order to reflect the amount actually received after taxes (that is outrageous, by the way). The Court then multiplied that amount, $61,120.27, by 77.27%, to reflect the portion of the severance pay earned during the marriage (68 months divided by 88 months). The Court concluded that $44,227.63 of the severance pay was marital property. The Court also ruled that since the husband did not prove that the vacation pay, bonus pay and outsourcing assistance amounts were not marital property, the after-tax amounts of those items would also be included in the marital estate.

How do Nebraska Courts Treat Money Spent on the “Other Woman (or Man)”?

2007-07-11T09:45:00.000-05:00

Suppose you are getting a divorce. You either knew already that your spouse was cheating or have found out during the divorce proceedings. You learn that your husband (or wife) was spending tons of money on another person. It could be dinner, jewelry, lingerie, hotel rooms, heck, it could be for breast implants (yes, that has actually happened). When you total it up, it is to the tune of several thousand dollars. What do you do? Does your spouse have to pay that money back?

When you get a divorce in Nebraska, the court hearing the case will decide what is considered marital property and split that between you and your spouse. If the court decides that your spouse has to pay back the money spent on dalliances, the value of the marital estate is increased, which means at the end of the day, you get more money. So it is in your interest to ask the court to find that the money spent by your significant other was marital property. The term for what he or she did is “dissipation of marital assets”, or “dissipation of funds.”

So what is required for the court to find a dissipation of funds? Well, first, your spouse must have spent money or used marital property for a selfish purpose unrelated to the marriage. If your husband took $4,000 from your joint bank account to get his girlfriend breast implants, that would definitely qualify.

However, the second requirement is crucial. The dissipation of funds or assets must have occurred at a time while the marriage was undergoing an irretrievable breakdown. If your spouse is spending the money at a time when you think you are in a perfectly happy marriage, you may not be able to convince the court that your spouse should reimburse the marital estate for the funds or assets spent.

The Nebraska Court of Appeals squarely addressed this issue yesterday in Malin v. Loynachan, 15 Neb. App. 706 (2007). In Malin, the wife discovered that her husband had charged things on their credit card, such as trips, jewelry and lingerie purchases, that were not for her benefit. The husband admitted to spending about $9,000 on another woman. The trial court declined to make him reimburse the marital estate for that amount, and the wife appealed. The Court of Appeals ruled that, because the wife did not provide any evidence that the marriage was undergoing an irretrievable breakdown during the time the husband spent the money, the court could not order him to reimburse the marital estate for the $9,000.

What evidence is required to show that the marriage is undergoing a irretrievable breakdown? Well, certainly, if the spouses are separated, or if one spouse has asked for a divorce, or if the spouses are estranged, then there is an irretrievable breakdown. But is estrangement or separation required? The Court of Appeals said no in Malin. However, the Court did not elaborate on what other kind of evidence might prove an irretrievable breakdown.

So how do you protect yourself? Well, first, try to stay involved in the family finances as much as possible. Be aware of what transactions are occurring. Second, if you feel your marriage is on the rocks, start documenting. Keep a diary of things that are happening and people involved. It will be easier for your attorney if you can show him a list of specific events and potential witnesses from three years ago showing that your marriage was over in all but name only. Third, make sure your attorney involves you in reviewing past transactions for potential dissipation of assets.

One final note: Dissipation of funds does not necessarily have to involve a third party. If your spouse is spending money hundreds of dollars each month at the casino by himself or herself, or on high tech gadgets for their own benefit, that can also constitute a dissipation. Bur remember, it is not enough to show a selfish purpose unrelated to the marriage. You must also show that the marriage was undergoing an irretrievable breakdown.

Nebraska Enacts Uniform Child Abduction Prevention Act

2007-07-10T11:50:00.000-05:00

On February 2, 2007, Nebraska became the first state to enact the Uniform Child Abduction Prevention Act. The purpose of the Act is to help parents prevent the other parent from taking children out of Nebraska or out of the United States and refusing to return them. The Act went into effect immediately. Below are some basic questions and answers explaining how the Act works. If you have further questions, you can comment on this post or email me and I will answer them in this blog.

What does the Uniform Child Abduction Prevention Act do?

Briefly, the Act allows a person to file a petition to protect a child from abduction by seeking “abduction prevention measures.” The Act also authorizes a court to order such measures on its own and authorizes a county attorney or the Attorney General to seek a warrant for such measures.

Who can file a petition under the Act?

Any person who is a party to a court order of child custody or visitation can file the petition. You do not have to be the “custodial parent.” Also, any person or entity who would have the right to seek a court order for child custody or visitation may file a petition under the Act.

How much proof is necessary for the court to enter an order?

The court must find that there is a credible risk of abduction.

What does the court look at to decide whether there is a credible risk of abduction?

The court will look at the following factors in making its determination:

- Has the parent in question previously abducted, attempted to abduct, or threatened to abduct the child?

- Has the parent in question recently engaged in activities that may indicate a planned abduction, including:

(A) abandoning employment;

(B) selling a primary residence;

(D) closing bank or other financial management accounts, liquidating assets, hiding or destroying financial documents, or conducting any unusual financial activities;

(E) applying for a passport or visa or obtaining travel documents for themselves, a family member, or the child; or

(F) seeking to obtain the child’s birth certificate or school or medical records?

- Has the parent in question engaged in domestic violence, stalking, or child abuse or neglect?

- Has the parent in question refused to follow a child custody determination?

- Does the parent in question lack strong familial, financial, emotional, or cultural ties to the state or the United States?

- Does the parent in question have strong familial, financial, emotional, or cultural ties to another state or country?

- Is the parent in question undergoing a change in immigration or citizenship status that would adversely affect his or her ability to remain in the United States legally?

- Has the parent in question had an application for United States citizenship denied?

- Has the parent in question forged or presented misleading or false evidence on government forms or supporting documents to obtain or attempt to obtain a passport, a visa, travel documents, a Social Security card, a driver’s license, or other government-issued identification card or has made a misrepresentation to the United States government?

- Has the parent in question used multiple names to attempt to mislead or defraud?

- Is the parent in question likely to disregard a determination by a court of Nebraska to not recognize and enforce a foreign child custody determination?

- Is the parent in question likely to take the child to a country that:

(A) is not a party to the Hague Convention on the Civil Aspects of International Child Abduction and does not provide for the extradition of an abducting parent or for the return of an abducted child;

(B) is a party to the Hague Convention on the Civil Aspects of

International Child Abduction but:

(i) the Hague Convention on the Civil Aspects of International Child Abduction is not in force between the United States and that country;

(ii) is noncompliant according to the most recent compliance report issued by the United States Department of State; or

(iii) lacks legal mechanisms for immediately and effectively enforcing a return order under the Hague Convention on the Civil Aspects of International Child Abduction;

(C) poses a risk that the child’s physical or emotional health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children;

(D) has laws or practices that would:

(i) enable the person in question, without due cause, to prevent the person seeking the order from contacting the child;

(ii) restrict the person seeking the order from freely traveling to or exiting from the country because of that person’s gender, nationality, marital status, or religion; or

(iii) restrict the child’s ability legally to leave the country after the child reaches the age of majority because of a child’s gender, nationality, or religion;

(E) is included by the United States Department of State on a current list of state sponsors of terrorism;

(F) does not have an official United States diplomatic presence in the country; or

(G) is engaged in active military action or war, including a civil war, to which the child may be exposed?

What if I keep the child in my custody to prevent my ex-husband/ex-wife from hurting my child and my ex files one of these petitions against me?

If a petition is filed against you, you will have to go to court to address the problem. However, at the hearing, the court will consider any evidence that you believed in good faith that your conduct was necessary to avoid imminent harm to the child or you and any other evidence that may be relevant to whether you may be permitted to remove or retain the child.

What will the court do if the judge finds that there is a credible risk of abduction?

The court will issue an abduction prevention order that may include one or more of the following:

- imposing travel restrictions that require that a party traveling with the child outside a designated geographical area provide the other party with the following:

(A) the travel itinerary of the child;

(B) a list of physical addresses and telephone numbers at which the child can be reached at specified times; and

- prohibiting the person in question from directly or indirectly:

(A) removing the child from this state, the United States, or another geographic area without permission of the court or the written consent of the person seeking the order;

(B) removing or retaining the child in violation of a child custody determination;

(D) approaching the child at any location other than a site designated for supervised visitation;

- requiring that a party register the order in another state as a prerequisite to allowing the child to travel to that state;

- with regard to the child’s passport:

(A) directing the person seeking the order to place the child’s name in the United States Department of State’s Child Passport Issuance Alert Program;

(B) requiring the person in question to surrender to the court or the attorney of the person seeking the order any United States or foreign passport issued in the child’s name, including a passport issued in the name of both the parent and the child; and

- as a prerequisite to exercising custody or visitation, requiring the person in question:

(A) to provide an authenticated copy of the order detailing passport and travel restrictions for the child to the United States Department of State Office of Children’s Issues and the relevant foreign consulate or embassy;

(B) to provide proof to the court that he or she has done so;

(C) to provide to the court an acknowledgment in a record from the relevant foreign consulate or embassy that no passport application has been made, or passport issued, on behalf of the child; and

(D) to provide to the person seeking the order proof of registration with the United States Embassy or other United States diplomatic presence in the destination country, unless one of the parties objects; and

- Upon request, requiring the person in question to obtain an order from the relevant foreign country containing terms identical to the child custody determination issued in the United States.

The court may impose conditions on the exercise of custody or visitation that:

- limit visitation or require that visitation with the child by the person in question be supervised until the court finds that supervision is no longer necessary and order the person in question to pay the costs of supervision;

- require the person in question to post a bond or provide other security in an amount sufficient to serve as a financial deterrent to abduction, the proceeds of which may be used to pay for the reasonable expenses of recovery of the child, including reasonable attorney’s fees and costs if there is an abduction; and

- require the person in question to obtain education on the potentially harmful effects to the child from abduction.

Finally, to prevent imminent abduction of a child, a court may issue a warrant to take physical custody of the child and may direct the use of law enforcement to take any action reasonably necessary to locate the child, obtain return of the child, or enforce a custody determination.

I don’t have time to wait for a hearing. I’m afraid my ex is taking my child tonight!

If a petition contains allegations, and the court finds that there is a credible risk that the child is imminently likely to be wrongfully removed, the court may issue an “ex parte” warrant to take physical custody of the child. “Ex parte” means the court can issue the warrant without first hearing from the person in question. If the court issues an ex parte warrant, the court must hold a hearing on the soonest possible court day. The warrant must recite the facts upon which the determination of a credible risk of imminent wrongful removal is based and must direct law enforcement to take physical custody of the child immediately. The warrant must also provide for the safe interim placement of the child pending further order of the court.

How long will an abduction prevention order remain in effect?

The order remains in effect until the earliest of:

- The time stated in the order;

- The emancipation of the child;

- The day the child turns 18; or

- The time the order is modified, revoked, vacated or superseded.

Trusts and the Problem of Refinancing Your Home

2007-04-29T10:10:00.000-05:00

If you are a homeowner with an estate plan that includes a revocable living trust, you likely intended for your house to go into the trust. Then, when you die, your house will transfer without the need for probate.

BUT - if you have refinanced your house after your estate plan was created, did you remember to put the house back in the trust?

If your house was in the trust before you refinanced, you would have had to pull the house out of the trust before getting your new mortgage. If you did not re-transfer the property back into the trust, then the house will still be subject to probate when you die. Probate is not necessarily a bad thing, but if the primary purpose of the trust was to avoid it, and then you take the assets out of the trust, you wasted your money.

Revocable trusts require regular review. The trust does you no good if you take assets out or forget to put some in.

Factors in Determining Child Custody

2007-01-21T15:30:00.000-06:00

If you are currently fighting or plan on fighting for custody of your child or children, what factors do you think the court will consider? How do you convince the judge that you you will be a better caretaker than the other parent? Here is a quick list of issues which you will should be able to address:

1. Love

Talk about how you show affection to your child/children, and, if suitable, how other parent does so (or does not)

2. Food preparation and types of food prepared

What are their favorite foods? What do they like? What do they hate? When do they eat? How often do they eat fast food vs food at home? If your spouse fills them with junk food, talk about that.

3. Routine – weekdays and weekends

You should be able to talk about when they get up and go to bed and any inherent difficulties, their involvement in activities outside the home, chores and hygiene routines, etc.

4. Education

What schools have they attended? What are their grades? Show report cards and talk about difficulties they are having, teacher conferences, open houses, etc.

5. Time spent with child or children

In what activities do engage with the children, e.g., reading, park, zoo, TV, etc.

6. Medical care

Who provides insurance for the child? Who are their doctors? Do they have their immunizations? Any particular health issues the child has? If child is on medication, does the other parent ensure child takes it regularly and on time?

7. Dental care

Who is their dentist? Who takes them to appointments? Also discuss records, current state of teeth, future work anticipated (e.g. braces)

8. Religious training

Do the children attend church? Where? How often? Who is their pastor, priest or rabbi? Who takes them to church? Are both parents same religion? Any obstacles to continuing the children in their faith?

9. Communication

Do the children openly communicate with you and/or other parent? Any difficulties in this area?

10. Provisions for child care

Who will watch the children while you are gone? How often are you gone? What are your expenses for child care?

11. Housekeeping

12. Child’s temperament

13. Child’s preferences as to custody and why

The courts usually will give weight to this factor only when the child is over the age of 12. However, it is important to know why the children, even younger ones, prefer one parent over the other. For instance, it can indicate that one parent may be bad-mouthing the other to the children, something to which courts do not take kindly.

14. Home condition and location – accessibility to parks, schools, churches, hospitals

15. Family in the area – grandparents, aunts, uncles, cousins, godparents

16. Physical description of family residence – rooms, yard, etc.

Remember, this is not just about bashing the other parent - it is about showing that you are an appropriate caregiver yourself. If your child or children have difficulties while in your custody, don't try to hide them from your attorney. Instead, be upfront about the problems so that you and your attorney are prepared to address them with the judge. After all, it is likely the judge will find out about the problems, and you don't want him or her to think that you are in denial about those issues.

Proof that Amber Alerts Work

2007-01-14T10:56:00.001-06:00

A West Point girl was kidnapped but then rescued less than six hours later, thanks to Nebraska's Amber Alert system. Someone seeing or hearing the alert called in a report, leading the State Patrol to the kidnapper and the girl.

2007-01-14T10:54:00.001-06:00

Test

Elkhorn Loses to Omaha

2007-01-12T21:48:00.000-06:00

Well, it's a sad day in Elkhorn. The city has lost its battle to prevent Omaha from annexing it. Over 7,000 people that chose not to live in the Big 'O' have had that choice taken from them.

You can read the opinion here.

The part I found most surprising was that Omaha was allowed to create a path to Elkhorn by annexing a bunch of land between the two cities and annex Elkhorn at the same time, as shown here. That just seems wrong.

I'd like to know if any people living in Omaha are bothered by this.

Must a criminal suspect "unequivocably" ask for counsel?

2006-08-27T08:47:00.000-05:00

To summarize: The police badger a suspect into a confession. During the interrogation, they prevent him from asking for counsel by interrupting him whenever he is about to ask. The prosecutor then argues that the suspect was required to "unequivocally" ask for counsel.

Does anyone see anything wrong with this?

Police are in a position of power in the interrogation room, and it is very easy to press suspects into going along with what the police want, even, in some cases, when the person is innocent. That's the reason we have the "right of counsel." Police should not be allowed to prevent suspects from invoking this right simply by cutting them off whenever the suspects start to say they want an attorney.

Neb. tries to oust trooper linked to KKK

2006-08-26T11:14:00.000-05:00

Nebraska makes the national news again....

You can argue that his views haven't influenced his job and that his private life activities should not impact his job, but let's face it. Once it has become public knowledge that he's a Klansman, every time he is involved in any contact with minorities, there will be suspicions and allegations of misconduct, and all the incidents will have to be investigated. He's created a major headache for the Patrol.

Omaha City Council Passes Sex Offender Residency Restrictions

2006-04-25T21:52:00.000-05:00

Key provision: The ordinance doesn't apply to offenders already living in the restricted areas.

To all sex offenders living outside of Omaha: You have until June 30 to move here and get a good spot....

You can read the entire ordinance here.

Hergert Moves to Dismiss Articles of Impeachment

2006-04-25T10:57:00.000-05:00

Denise Richards' Divorce Petition Against Charlie Sheen

2006-04-21T22:40:00.000-05:00

After two months on hiatus, I'm ready to go again.

Denise Richards' petition contains very serious accusations against Sheen, including statements that he visits teen porn sites and trolls for sex on the Internet. This seems a little amazing, considering not only that Denise is an incredible hottie, but also that Charlie could probably walk down the street and find any number of attractive girls willing to hook up with him, even knowing that he is married. In fact, it's kind of reminiscent of when Hugh Grant was caught with the hooker years ago.

Just goes to show that this kind of activity is not the province of ugly fat men with no financial prospects.

Is This a Good Reason for Keeping Religion Out of Schools?

2006-02-23T09:56:00.000-06:00

How many years in hell do you get for hollowing out a bible to cart around drug paraphenalia?

Another City Employee Makes Us Proud

2006-02-23T09:51:00.000-06:00

Seems like we are having a lot of problems with city and county employees in recent months. More arrests and firings than I can recall in a long time. Frank Castellano with the Douglas County Treasurer's Office, the guy from the Clerk of the District Court that was arrested for underage solicitation, the Ice Rink scandal.... Are the city of Omaha and Douglas County just suddenly becoming better at investigating, or is there an actual increase in misdeeds occurring in local government? Maybe we should start a count....

Bail Set for Father Accused of Nearly Killing Child

2006-02-23T09:31:00.000-06:00

The judge set bail at $300,000/10%. So if he can come up with $30,000, he can get out. But I'm willing to bet he would prefer to stay in. Farrah Fazal of KETV interviewed him yesterday. Regardless of whether his story about blacking out is true, he does appear extremely remorseful, almost to the point that I would worry about him attempting suicide if he did get out on bail. He's in isolation from the general population right now, so I doubt anything will happen on the inside.

He said he has six kids: four already and two on the way. What is an 18 yr old boy doing with six kids?!? More importantly, what are the girls that are sleeping with him thinking?!? He doesn't look overly impressive to me. Not trying to be critical, just honest. Who and where are these women that are letting him knock them up?

Reminds me of an old episode of 7th Heaven (before it jumped the shark). Simon befriends a pregnant teenager. She then goes on about how her last boyfriend loves kids. So much, he already has three with other women! WOW. I never knew being a serial impregnator turned women on.

Adoption Traffiking in Iowa

2006-02-21T09:21:00.000-06:00

Who would have thought? I wonder if anything like this goes on in Omaha. If so, let me know.

Excellent Editorial on Nebraska Legislators' Fight Against Term Limits

2006-02-21T09:14:00.000-06:00

Couldn't have said it better myself.

Stupid Criminal of the Day

2006-02-16T20:57:00.000-06:00

Uh, officer, I was just wondering, uh, if I had a friend that was, uh, gonna burn up a car so that my mom....uh...I mean his mom, could collect the insurance money, uh, would that be wrong?

Nine Months Jail for Child Molester Husband

2006-02-07T21:05:00.000-06:00

Matthew Koso, the ADULT who started dating a 12 YEAR OLD when he was 21 was sentenced to at least nine months in prison. The article by the Omaha World-Herald is here.

I love how the dad say that the Judge and the Attorney General have "committed political suicide." Right. Nebraskans are all for adults sleeping with kids that aren't even in high school yet.

The article does say that some Nebraskans think it's okay if they both consent. HELLO!!! The point of the statutory rape law is that a 13 year old CANNOT CONSENT. They do not have the intellectual maturity to consent to sex with an adult. If you think they can, then at what age do you think they are incapable of deciding?

The real question now is what happens after he gets out of prison? Is Nebraska forced to recognize his marriage? Probably, under the Full Faith and Credit clause of the Constitution. I have not looked into that issue. The safer alternative would be for him, his 'wife' and her family to move to Kansas where it is clearly legal. Thankfully, Kansas has or is in the process of changing the law because of this case. But that won't affect their marriage.

Child Support - Deviations and Modifications

2006-02-05T17:57:00.000-06:00

As I stated in the last post, child support in Nebraska is usually determined by the income of the parents, in accordance with the Nebraska Child Support Guidelines. However, the parents can agree to a different amount, with the court’s approval. Since child support is for the benefit of the children and not the parents, there must be a good reason for any deviation from the Guidelines.

If you and the other parent seek a deviation from the Guidelines, any decent attorney would advise you to put your agreement in writing, or at the very least, read the agreement into the court record in detail. This way, if there is a change in the conditions that caused you and the other parent to seek the deviation, you will be able to go back into the court and ask it to alter the amount of child support due. This is called a modification.

To get a modification of child support, you have to show a “material change of circumstances” to the court. The presumption, according to the Guidelines, is that there is a material change in circumstances if application of the guidelines would result in a change by 10 percent or more, but not less than $25, upward or downward, of the current child support obligation, and if such circumstances have lasted 3 months and can reasonably be expected to last for an additional 6 months.

How Child Support is Determined

2006-02-05T17:32:00.000-06:00

Child Support in Nebraska is usually based on the total income of both parents. The amount is set according to the Nebraska Child Support Guidelines. The incomes of both parents, after certain deductions, are added together. A chart sets out various amounts of child support depending on the number of minor children and the parent’s total combined income. The Court then determines the percentage each parent contributes to the total combined income. Each party must pay a percentage of the child support based upon the percent of income contributed by that party.

For example: Bob and Julie have two minor children. Bob makes $3,000 per month and Julie makes $1,000 per month, for a total of $4,000 per month. The Nebraska Child Support Guidelines state that if the parents have two children and make $4,000 per month, the total amount necessary to support the children is $1,338. Since Bob’s income is 75% of the total income of $4,000, he is responsible for 75% of $1,338 in child support, or $1,003.50. Julie is responsible for the remaining 25%, or $334.50.

If Bob and Julie had one minor child, the total amount of support would be $905, and Bob would have to pay $678.75. If they had three minor children, the total amount would be $1,548, of which Bob would pay $1,161.

The chart which sets out the amounts of child support can be found here.

Real-World Economics for the High-School Student

2006-02-01T20:36:00.000-06:00

A 14-year old student in Lincoln is arrested for selling crack, according to KETV News.

Yet another argument for homeschooling....

Another Omaha Lawyer Enhances the Image of the Profession

2006-02-01T19:47:00.000-06:00

I feel slightly bad for this attorney, but since this is not the first time he has been in trouble, I feel more concern for the public at large. When Mr. Gleason was previously disciplined for misappropriation of client funds, he was given a very rare exception to the usual rule of automatice disbarment. The Nebraska Supreme Court felt that his psychological condition warranted special treatment. The opinion from 1995 (248 Neb. 1003, for those of you who want to look it up) doesn't state much he took in that case, but attorneys in Nebraska routinely lose their licenses for taking less than $1,000. It's sad to see one of the Supreme Court's few cases of leniency come back to bite them, and all of us.

In addition to the Omaha World-Herald article, KETV had two stories on the incident providing fresh detail: here and here. Of particular note is that he may owe clients more than $60,000. The worst part about this is that this will make it harder for other attorneys to show mitigating circumstances why they should not be disbarred in the future, even though some may actually be deserving of a second chance.

Some key sections from the 1995 Opinion:

First, there is no question that misappropriation of client funds, as one of the most serious violations of duty an attorney owes to clients, the public, and the courts, typically warrants disbarment....

[R]espondent is unique to this court in that he was undergoing treatment for his psychological problems before the Counsel for Discipline contacted him with the informal complaint. Respondent suffered from certain well-defined psychological problems, and those problems led to the complaint. There can be no implication that he sought treatment for his behavior in order to find some excuse to use in this proceeding....

Respondent has shown both remorse and a resolve to deter any possible infractions in the future....At every stage of this disciplinary process, respondent was unanimously found to be deserving of leniency.

Sixth, as to respondent's fitness to practice law, no client ever suffered any monetary loss [NOT TRUE NOW], and all clients were represented professionally and zealously. As to respondent's fitness to practice in the future, both physicians who testified stated that respondent was reacting favorably to treatment and that respondent was fit to practice law.

Finally, there are several major mitigating factors to beconsidered in this case: respondent's dual psychological illnesses and the fact that treatment of the conditions preceded the complaint.

Respondent's active involvement in the betterment of the legal profession, the affirmations of character on his behalf, the current medical treatment of respondent, and his resolve to continue such treatment should also be considered.

The unique nature of respondent's cooperation is another important mitigating factor. It is solely by virtue of respondent's testimony that we became aware of the information which led to the formal charge that respondent was out of trust. Had respondent not disclosed this information or been uncooperative, we do not know if the Counsel for Discipline would have had enough information to pursue formal out-of-trust disciplinary charges. We are dealing with an ethical system, the success of which depends largely upon voluntary compliance. We hesitate to set a precedent which would chill future respondents' cooperation.

The nature of depression and the psychiatrist-assisted potential for cure are mitigating factors in Nebraska disciplinary proceedings.

We affirm that in virtually all future cases of misappropriation, disbarment will be the only appropriate discipline unless it appears that the misconduct resulted from nothing more than mere negligence. While avoiding a per se rule,we acknowledge our prior decisions and will regard a lesser sanction only when extraordinary mitigating factors are present. This court has found such factors in the past and may find other factors in the future. However, mitigating factors will only overcome the presumption of disbarment if they are extraordinary and, when aggravating circumstances are present, substantially outweigh those circumstances as well.

CONCLUSION

When we balance the need to protect the public, the nature of respondent's offenses, the need for deterring others, and the reputation of the bar as a whole against respondent's interest in preserving his privilege to practice law and all mitigating circumstances, we must conclude that the only appropriate judgmentis to suspend respondent from the practice of law effective immediately.

Judgment of suspension.

Omaha City Lawyers See Merger as "Problematical"

2006-02-01T19:37:00.000-06:00

Aren't lawyers supposed to be experts with the written word? Apparantly someone in the City Law Department doesn't know how to use their spell check.

In an Omaha World-Herald article, Omaha city lawyers raised concerns about a potential merger of city and county governments. Issues such as violation of the principal of "one man, one vote" and of Omaha receiving preferential treatment to other cities in Douglas County were highlighted in the memo.

A key quote: "That broad nature makes this latter question problematical,".

What was not highlighted was whether such a merger would involve hiring attorneys who could proofread before releasing memos to their clients or the press.

Cass County Attorney Overreaching on Underage Drinking

2006-01-31T00:47:00.000-06:00

According to this Omaha World Herald article, Cass County Attorney Nathan Cox is attempting to crack down on underage drinking by seeking the ability to arrest anyone under 21 showing "evidence of recent consumption," regardless of whether the person has alcohol on the breath. Such evidence would include problems with "speech, manner, appearance, behavior, lack of coordination" and other "symptoms" that ONLY occur if you've been drinking.

Right.

Tell that to diabetics, who frequently appear to be intoxicated when their blood sugar is low. Oh, and don't let your teens go outside if they have been up all night cramming for finals. You don't want their blood-shot eyes and slight level of disorientation from lack of sleep to get them hauled to jail.

See, Cox's proposal does not involve a determination that the kids have actually INGESTED alcohol, but only that they exhibit the symptoms of having done so. You can't do that with drunk drivers. A cop may be able to pull someone over for what appears to be driving under the influence, but the cop still has to administer a breath and blood test. Cox apparantly doesn't think that's necessary.

I can't wait to see how this plays out.

Senator Wants to Put Ashland Underwater...

2006-01-31T00:39:00.000-06:00

So what is the deal with this proposal to build a lake right on top of Ashland??? It's not that I'm a big fan of the town or anything. I've been through it a few times and know relatively little about it. But why would a senator propose eliminating a town just to put in a lake? And apparantly this is not the first time something like this has been proposed. Am I missing something here?

Law Firm Specializing in Pizza Rights

2006-01-29T09:29:00.000-06:00

This firm will vigorously represent you and defend your right to tasty pizza. Pretty cool niche if you ask me....

Thanks to Matt Homann at the Nonbillable Hour (http://thenonbillablehour.typepad.com/nonbillable_hour/2006/01/links_for_20060_15.html)

Should This Officer Be Allowed To Retire?

2006-01-20T18:38:00.000-06:00

Yesterday, we learned that David Sherman, an Omaha policeman, was arrested on domestic assault charges. What is interesting is that he was allowed to submit his retirement paperwork so that he can collect his pension, regardless of the fact that he is not eligible for retirement until March. According to the article in the Omaha World-Herald, officers are always allowed to retire instead of being fired, and the officers will collect their pensions regardless of whether they are fired or face criminal charges.

Frankly, I think this is absurd. I can't say at the moment whether people in the private sector can collect their pensions if they are fired or have committed a crime involving their company. But assuming that they could, officers should be held to a higher standard. Let's face it. Anytime an officer commits a wrongdoing, the fact that he or she is a cop is part of it. In this case, it appears that Sherman has used his position to investigate people to harass them. If true, should he really be allowed to collect his pension? And frankly, how did he get away with this behavior so many times?

I love this quote by Councilman Chuck Siegerson. "He said that employees would not want to work for the city and give 100 percent if they were constantly worried about losing their pension." Well, if you are worried about keeping your pension, then don't break the law!

The one good part about him getting his pension is the probability that his wife will get a cut of it in the divorce.

Attorney General Appeals Poindexter Decision

2006-01-20T18:22:00.000-06:00

Edward Poindexter is one of two individuals considered by some to be "political prisoners" in Nebraska (the other is Mongo we Langa, formerly known as David Rice). He is still hoping to get out of his prison sentence. Background information regarding these two, from the "political prisoner" point of view, can be found at http://www.n2pp.info/. (get it? Nebraska's 2 political prisoners? How clever.) More detailed information can be found on Wikipedia. Finally, this letter, signed by Senator Ernie Chambers and Tariq Al-Amin, among others (Tariq is Omaha's "straight razor" cop), states their belief that the 911 tape will exonerate Rice and Poindexter. This will be interesting to follow.

Term Limits Challenge Taken Up By Judge

2006-01-19T15:26:00.000-06:00

Senator Ernie Chambers is still hoping to the one gift on his Christmas list... Another chance to run for office.

Howard Iken's 3 Day Action Plan for Spouses Served with Divorce Papers

2006-01-19T11:35:00.000-06:00

First, let me say that the Internet contains a lot of great information about divorce. You do not need to look only to Nebraska websites to find useful nuggets of information. This 3-day Action Plan, for instance, developed by Howard Iken, a Florida divorce attorney, is relevant to anyone experiencing a divorce, regardless of where they live. However, I do have some comments to share, which I will insert in relevant places throughout the article.

You Were Served Divorce Papers? A 3 Day Action Plan by Howard Iken

Copyright 2005 The Divorce Center P.A.

Today

• Don't panic - best decisions are made with a cool, calm head

• Sit down, relax, and read the divorce papers several times.

• Don't call your spouse in anger - no contact is best for now.

I would just add - Do not ignore calls from your spouse. She/he may be calling with important information, such as arrangements for child support, paying bills that are immediately due, etc. Also, if you absolutely need to contact your spouse, it may help to have a friend or relative with you for emotional support - not to argue with or yell at your spouse, but to help keep you calm. Regardless of who calls whom, keep it short and to the point, and DO NOT ARGUE.

• Read up on divorce - knowledge always helps take the fear away.

• When you finish the above steps, take a short break and then read all of the divorce papers again until you thoroughly understand what is ahead.

• If you have children, do not draw them into the conflict. This is best for your children and will put you in the best position to win custody.

Do not blame your spouse for anything, and do not let your friends or relatives bad mouth your spouse around the children. When your children ask about the divorce (and they will), give them lots of reassurance, but don't make promises you may not be able to keep (e.g., "Don't worry honey, you'll stay with me").

• You have 20 days from the date you received the summons to send an answer.

In Nebraska, you have 30 days to file an answer.

• If possible, take tomorrow off and devote some thought to the situation.

Tomorrow

• You must decide if you will represent yourself or hire an divorce attorney.

• If you want an attorney, start calling and find one that you like.

• If you are a do-it-yourself person, continue to read about divorce for 7 more days. You have almost two weeks to act and you must become well informed.

• Review the location and amount of all your assets. If possible, remove money from the bank and put it in a place of security. Do not deprive your spouse of necessary funds to live on. That could backfire on you.

This is VERY IMPORTANT. In fact, you should start doing this before you are served if you even suspect your spouse is going to file for divorce. The other party will frequently take items of value with them, and it can be easy to lose track, particularly if the items are small, such as figurines or baseball cards. If your spouse takes certain items and sells them, and you have not kept a record of all of the items, you have essentially awarded 1o0% of the value of those items to your spouse.

• Review your credit cards and any other sources of credit. If possible, cancel cards that are joint accounts or remove your spouse's name from the card.

HOWEVER, keep your own needs in mind while you are doing this. If you need money to retain an attorney, or to pay rent or buy food, your best option may be to take a cash advance against the card, even a joint card.

There are two reasons you may not want to cancel that joint card. First, the concern here is that your spouse may run up charges on a joint card and try to stick you with the bill. In Nebraska, a party can be held liable for those debts incurred for his/her own benefit not only after the marriage but during the marriage. Since today's credit card statements are fairly detailed, you should be able to show in court that the other party ran up charges on the card and should have to pay those charges themselves.

Second, it may be difficult for you to access new credit. If you are unemployed, or if your credit is at the limit, you may not be able to take on new unsecured debt, and you will not be able to take loans against property on which your spouse is also named without her/his consent. Instead, keep thorough track of all your uses of the card, and immediately question any transactions with which you were not involved.

• Speed is your best tool - be thorough and act today.• Go into conservation mode and build a rainy day fund. You may soon need it.

• Begin to collect all records of assets, amounts owed, property, deeds, and family business records. If you are in the marital home, keep the records in a more secure place, like with a trusted friend.

The alternative, of course, is to change the locks so that your spouse doesn't have access to the home. If you take this route, don't forget to change the setting on the garage door opener and the keycode on any keyless entry systems.

• Call the IRS to find out how to request copies of the last 5 years of tax returns - if you don't already have them.

Next Day

• Continue your education. This is one of the biggest and most important projects of your life. Read books and attend seminars. Become an expert.

• Make a financial plan or a household budget for the next 12 months. Don't spend unnecessary money.

• Get a notebook and a holder for paperwork. Set up a central collection point for all the information you gather during your divorce. Keep a detailed diary and jot down anything you learn from your educational efforts.

I cannot stress the importance of the detailed diary enough. It is very hard to reconstruct conversations and events even a few months down the road. Start off by writing down every event and conversation of importance that you can recall. Then write down new events and conversations while they are fresh in your mind. Your notes can be valuable tools in the hands of your attorney.

Remember, you are not powerless. You can take control of your divorce and protect your interests.

2006-01-10T22:30:00.000-06:00

Tobacco is NOT a food group!

In case you were wondering....

http://www.ketv.com/news/5981818/detail.html

Interestingly enough, there is no mention of why the felony charge of child abuse was dropped. Ms. Harlan was originally accused of trying to sell her child into prostitution. http://www.wowt.com/news/headlines/1568831.html.

2006-01-10T22:06:00.000-06:00

Sometimes You Should Just Keep Your Mouth Shut....

Just because you can get a higher court to throw out your sentence doesn't mean you're better off....

http://www.ketv.com/news/5981734/detail.html

The actual Court of Appeals decision can be found here:

http://court.nol.org/opinions/2006/january/jan10/a05-529.htm

2006-01-10T21:55:00.000-06:00

Abduction Story Made Up

http://www.ketv.com/news/5977112/detail.html

What do you do with an 8 year old in a situation like this? As an active practitioner in Juvenile Court, I can't really think of any effective remedy the Court could impose, beyond maybe counseling. I can't really blame the parents either. As a parent, I don't think they could have necessarily prevented this. I have learned that some kids will behave improperly regardless of how they are raised. And billing the parents for the costs of the city's time would not teach the child anything.

What are your thoughts?

2006-01-10T21:47:00.000-06:00

Another City Employee Scandal in the Making?

http://www.ketv.com/news/5982782/detail.html

The Parks Director, Larry Foster, has not been charged, nor has another employee who was fired. No word if such charges are on the way.

2006-01-05T21:21:00.000-06:00

I'm Back!!!

Not that any of you were worried....lol.

2005-10-11T18:03:00.000-05:00

Stupid Alibi of the Day

Debbie Bendorf of Louisville is accused of purchasing lottery tickets with someone else's credit card. Her alibi? Someone else purchased the tickets and just gave her a credit card number, not the card itself. "Gee judge, I'm not a thief, I'm just real stupid!"

I wish I had known I could make purchases that way, just carrying my card number around instead of actually showing the card itself. Maybe someday the stores will get real tough and even ask for ID....

http://www.theomahachannel.com/news/5083297/detail.html

2005-10-11T17:47:00.000-05:00

I'll bet Judge Ashford wishes he didn't have to recuse himself from this case...

http://www.theomahachannel.com/news/5086352/detail.html

2005-10-11T17:08:00.000-05:00

Get Ready for a Whole Slew of Lawrence Phillips Types...

Well, I think we are now learning what kind of a coach Callahan will be. Seems that Le Kevin Smith is going to play on Saturday despite his recent assault of a UNL parking cadet. We're not privy to the discipline being imposed on Le Kevin, but we're assured it's "appropriate."

Seems that Bill isn't really interested in keeping players out of the game regardless of their behavior. While he was the coach of the Oakland Raiders, he let Sabastian Janikowski play after getting pulled over with a BAL of .20. http://www.sports-smack.com/columns2002/stupid.htm. Janikowski had a history of run-ins with the law at that time, including a few involving the date-rape drug GHB and a few involving fights. http://www.cracksmoker.com/NFL/NFL%20JanikowskiS.htm. But hey, he was a great kicker. They needed him on the field, right?

I guess we'll see how Le Kevin turns out, but hopefully someone will keep an eye on these issues....

2005-09-15T10:45:00.000-05:00

The city of Omaha is a "Pane" to deal with...

Three years after the city of Omaha "accidently" demolished Frankie Pane's building, the one they so desparately wanted gone, the city is demanding that Frankie remove the remaining part of the building. It appears from the news that Omaha has been playing games with Pane in order to prevent him from rebuilding his bar. I have serious suspicions about the city's motives during all of this.

The article can be found here.

2005-08-16T10:28:00.000-05:00

Judges Behaving Badly, part 2?

Bill Gallup seems to think so....
http://www.omaha.com/index.php?u_pg=1636&u_sid=1484543&u_rnd=7783806

Of course, there are two sides to this story. We'll have to watch the appeal on this one.

2005-08-14T09:19:00.000-05:00

Douglas County Judge Reprimanded

http://www.siouxcityjournal.com/articles/2005/08/14/news/nebraska/22c89ae121c77bff8625705d000f4532.txt

2005-08-01T21:47:00.000-05:00

Sure We Trust You....

Looks like Papillion-LaVista Schools aren't taking any chances...

http://www.theomahachannel.com/education/4796430/detail.html

2005-08-01T08:40:00.000-05:00

And Thus It Begins....

The court hearing on the annexation of Elhorn begins Wednesday.

2005-07-31T16:49:00.000-05:00

Pedophile Update

It seems that the Nebraska-Kansas pedophile marriage case has prompted Kansas to consider changing its law. http://www.kansas.com/mld/kansas/news/12266670.htm. This is good, but I still have to wonder what the mom was thinking that it was better to let her daughter marry a pedophile than to help her daughter raise the baby as a single mother.

2005-07-31T16:42:00.000-05:00

On the Meth Watch

http://www.journalstar.com/articles/2005/07/31/local/doc42ec2265d4ac0922666555.txt

Very interesting analysis of the effect of the new meth laws on the prison population in Nebraska.

2005-07-17T19:05:00.000-05:00

"How I Spent My Summer Vacation - Judge-Style"

Nebraska U.S. District Judge F.A. Gossett was mentioned in today's edition of Florida Today. Seems he and another judge just spent two weeks in the former Soviet Republic of Tadjikistan training 22 judges as part of an effort to restore an effective legal system to former USSR countries. Those judges will train other judges. Has the Omaha World-Herald run any sort of story about this?

2005-07-14T17:04:00.000-05:00

Red Light Cameras Invade the Heartland

I can't wait for the court cases on these...

2005-07-13T22:03:00.000-05:00

File This One Under "How Dumb Can You Be?"

Even if you don't want to stop drinking, don't tell the probation officer that!

2005-07-12T21:53:00.000-05:00

Providing for your Pet after Death in Nebraska

What will happen to your dog or cat after you die? Who will take care of them? If you find someone to look after Pooky, can that person afford her upkeep? What if, after discovering the expense involved, that person decides to abandon Rover instead of honoring your wishes? How can you ensure that your 'baby' will be properly provided for, without worrying about the costs to the caregiver?

LexisONE has a great article on setting up a trust fund to care for pets after death. The article discusses, in general terms, issues such as establishment of such a trust, terms of care, and preventing fraud by the caregiver. Here is the link:

http://www.lexisone.com/news/nlibrary/n060005c.html

Nebraska now provides for the creation of trusts for the care of animals. Nebraska Revised Statutes section 30-3834 states that a trust may be created for the care of any animal alive during the lifetime of the person creating the trust. The trust ends upon the death of the animal. If the trust is created for more than one animal, the trust ends upon the death of the last surviving animal.

The article mentions that if the amount used to fund the trust is unreasonable, other persons interested in the property of the deceased may object. The Nebraska law deals with this issue by requiring that to the extent the value of the property in the trust exceeds the amount required for the intended use, the excess must be taken out and distributed to the deceased person's 'successors in interest,' i.e. anyone entitled to inherit a share of that person's property.

The article also mentions that a caregiver could try to replace an animal who has died in order to keep collecting money from the trust, and that a DNA test could help prevent that fraud. I personally think a simpler and cheaper way would be to have your pet implanted with one of those microchips used to locate lost pets. Then, if the trustee suspects that the caregiver has replaced the pet, she need only check to see if there is a chip, and if there is, whether it is the same chip. If you have a different suggestion on preventing fraud, feel free to post it as a comment.

2005-07-10T12:36:00.000-05:00

Article on Meth and Theft in Today's World-Herald

http://www.omaha.com/index.php?u_pg=1638&u_sid=1456078

I have handled quite a few juvenile and misdemeanor cases involving meth. It is not a nice drug. You can count on having your face shrivel up, as well as losing quite a few of your teeth and your ability to enjoy sex. So what was the up side for you again?

2005-07-08T22:18:00.000-05:00

But Officer, I DID Pay for My License Plate Renewals

I sent in the check. Maybe someone took it....

http://www.omaha.com/index.php?u_pg=1636&u_sid=1455221

2005-07-08T22:10:00.000-05:00

Quote of the Day

"It's a dark day for rivers and streams in Nebraska."

http://www.omaha.com/index.php?u_pg=1638&u_sid=1455468&u_rnd=1541287

Can we expect a groundswell of opposition to this decision? Will the NRD see a flood of support from the urban areas? Or will the Capitol tell the farmers to cry them a river?

2005-07-08T20:51:00.000-05:00

Douglas County Democratic Chairman Gets Off Easy

Omaha City Councilman Chuck Sigerson has settled his lawsuit against Douglas County Democratic Chairman Ron Hug, and all it cost Hug was an apology.

http://www.omaha.com/index.php?u_pg=1673&u_sid=1455493

Ron had sent out fliers during Chuck's reelection campaign last year stating flat out that Chuck had sexually assaulted a minor. This was based on the "Red Robin" incident, where a girl in a mascot outfit for the restaraunt claimed the coucilman had groped her. In his apology, which he is mailing Ron said that he thought the allegations were true, but later learned they were false. The text of the apology is here:

http://www.omaha.com/index.php?u_pg=1673&u_sid=1455526

This is amazing. Ron is not only getting off easy, he's getting off with another lie! Ron says that at the time he sent the flier he thought the charges were true, but that he has since learned they were false. There's only one problem with this assertion. The charges against Sigerson were dismissed in 2003. Is Hug really saying that he was not aware of this? IT WAS ALL OVER THE NEWS!!! Unless he has been out of the state for 2 years, I don't see how he could have missed it. The Chairman of the Douglas County Democrats doesn't keep up with the news about politicians in his own backyard? What, he doesn't talk to anyone else about politics or current events in Omaha? He's either lying, or he is the worst party chairman anyone could have.

I really think Chuck should have pressed him for a total admission.

2005-07-07T21:01:00.000-05:00

More Proof of the Efficiency of Bureaucracy

http://www.omaha.com/index.php?u_pg=1636&u_sid=1454231

2005-07-03T19:47:00.000-05:00

Rules of Evidence Meets Schoolhouse Rock!

http://www.putfile.com/media.php?n=hearsay

This really brings back fond memories....

2005-07-03T15:42:00.000-05:00

And While I'm Giving Out Advice....

It appears that in Nebraska, if you are drunk and you kill someone, your best option is to flee the scene immediately.

http://www.theomahachannel.com/news/4672114/detail.html

Key quotes:

"Papst faced a felony charge, but because the county attorney couldn't prove that she was drunk at the time of the accident, Papst was able to plead to the misdemeanor."

"In order to convict on a felony, prosecutors would have had to prove that Papst was drunk at the time of the accident. But police didn't catch up with her until later on the night of the collision."

2005-07-03T15:28:00.000-05:00

Advice: If You are Wanted on Federal Warrants....

....then you should avoid visiting certain places, like the Sarpy County Jail.

http://www.theomahachannel.com/news/4674586/detail.html

2005-07-02T18:50:00.000-05:00

Omaha Man Ruled Incompetent to Stand Trial

The Omaha World-Herald has reported that a 21 year old man was ruled incompetent to stand trial in a stabbing and burning of another man. The story can be found here. http://www.omaha.com/index.php?u_pg=1636&u_sid=1450635&u_rnd=5722293

Key quotes:

"Burns told police he stabbed Martin because Martin had ridiculed Burns' choice of music."

"Burns' attorney, Assistant Douglas County Public Defender Matthew Miller, has suggested in court that Burns is bipolar."

That sounds pretty weak. A therapist friend estimated off the cuff that 10% of the residents of Omaha could be bipolar. It would have been nice if the paper could have given more information on the severity of his condition.