Last Will & Testament Can Avoid Added Grief

Everyone has heard the adage “old age ain’t for sissies.”  That is true on a legal level as well as a physical one.  Most everyone with any assets worth noting makes a Last Will and Testament.  They want to be sure that MJ Goodwintheir favorite niece gets that ruby broach.  Lots of people have a Power of Attorney or a Living Will, too.  They want to know that they won’t be kept on a machine.  But few prepare for the horror story I’ve recently been witness to as part of my practice.  

Consider this:  Husband and Wife have been married almost sixty years. Both are well into their 80s.  They have worked hard during their lives and have accumulated around $250,000 in assets.  Not a fortune, but not chump change either.  Wife’s mental state has deteriorated and is so common in such situations, she is no longer herself and is even violent on occasion.  Husband loves wife dearly.  He remembers his promise that he would not put her in a nursing home.  But his ability to care for her is compromised by his age and her condition.  The government agency, out of necessity, steps in and takes custody of the wife.  She is placed in a nursing facility over husband’s objection.  Husband is ordered by the Court to pay for her care.

A number of issues arise in this situation.  First, is Husband obligated to pay for the nursing home?  He does not want it.  He believes he can take care of her.  But this is not realistic.  The answer is yes, he is required to pay her bills under the Necessaries Doctrine.  

So the next question becomes, to what extent is the Husband obligated to pay?  At $4000 per month, that $250,000 will not last long.  Is he obligated to spend all of his savings?  The answer is no.  The Medicaid regulations allow him to keep his home and $66,400.  

The situation is sickening.  Medicaid supports many, many people who have not saved and planned for their old age.  Is Husband penalized for working and saving?  The short answer is yes.  This is another flagrant example of what I call the success tax.  The success tax pops up in most aspects of our law abiding tax paying lives.  If you go to school and earn a good income, success tax.  If you save and buy a nice car or home, success tax.  It goes on and on.  If you are a parasite and have nothing, the government takes care of your bills.  Husband and Wife would have been better off to blow their savings on vacations and whatever else they wanted to buy while they were younger and in better health.  As it stands, the government will allow him to keep only a portion of the money he worked so hard to save.  He wanted to have something to leave his children.  That does not seem likely.  Another couple, in an identical situation, but who had not saved anything, would already be eligible for the government to pay for the nursing care.  How in the world is that the right result?  I cannot fathom it.

This is not an isolated situation.  I recently saw a dear friend withdraw her entire retirement savings so that her husband would qualify for medical treatment at a reduced rate.  She had saved and was punished for it.  Success tax.

So how could Husband avoid this?  Well, at this point, all he could do would be to divorce Wife.  He won’t do that.  But for the sake of argument, let’s say he did.  Wife would arguably be entitled to half of the estate.  So she would get $125,000 and half of the value of the house.  So he would still lose a substantial portion of the savings.  But he will not divorce her.  He cannot do that because of his love for her.  

The only other option is Long Term Care insurance.  But it is too late for this couple to buy that now.

So, in addition to knowing that “old age ain’t for sissies,” we can also be sure that the only certainties in life are death and taxes.  The success tax is particularly troubling and will only continue to plague Americans if we keep on the course we are on now.  We should be appalled at this situation.  We should be appalled that our government, by its regulations and taxation laws, actually encourages people to be frivolous and not save money.  It is not what our Founders intended.  

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation. http://www.mjgoodwin.com/**

Nothing Tacky about Proposed Horse Bill in S.C. Senate

By MJ Goodwin

I was reminded of my Law School days recently when I returned to the University of South Carolina, this time as an instructor.  Law School is part of my own personal history.  Some parts of Law School were like MJ Goodwin. Legal Padthe movie “The Paper Chase.”  Constitutional Law was one such class.  Consequently, Constitutional Law was not a favorite among first year law students.  It is, of course, a required course.  It is very necessary for any lawyer to have a good understanding of the basic fundamentals of our legal system no matter in what area he or she chooses to practice.  But nevertheless, there was a collective “groan” among first year law students as the subject of Constitutional Law was approached.   I realize it’s been twenty years since I was in Law School, but I don’t remember Constitutional Law being discussed outside the Law School.  Compare that with the almost constant Constitutional debates that are now on the 24 hour news networks.  It seems everyone has a book out with his or her view of what the Constitution really means and what the Framers really intended.  It is important to know history.  History shapes the future.  Our collective history is as important as our personal histories.

While I was a typical first year law student over two decades ago and while I readily admit to loathing my first year Con Law class, I do have a love for our Constitution.  I also love the history of the American Revolution.  Jefferson is a favorite of mine.  I tend to be Jeffersonian in my thinking.  I love to read books about Jefferson.  Last year, my son portrayed Thomas Jefferson at a school function.  Our family visited Monticello in preparation for that role.  Seeing a fascinating place like Monticello can really make history come alive.  I mention this because “living history” is important.  Seeing “living history” is much more fun than studying Constitutional Law.  And as I have said, history is important.

One does not have to go as far as Virginia to see evidence of our Founding Fathers.  There is “living history” quite close by.  Here in Anderson, we are not more than a few hours drive from many historic Revolutionary War sites.  Cowpens is close by and worth the trip.  Kate Barry’s farm, Walnut Grove, is also in the Spartanburg area.  Perhaps the most famous South Carolina Revolutionary was General Francis Marion, also known as “The Swamp Fox.”  His stomping ground was in the Low Country of South Carolina.

General Francis Marion was able to attack the British suddenly, with no warning and then vanish into the swamps.  The British were unable to follow him.  Bewildered and frustrated, the British bogged down in the marsh and were forced back to drier land.  Marion had a camp at Snow’s Island, deep in the swamp.  From that dark, dank, secret marshy place, he planned his attacks.  He shaped the future of the war and ultimately of our country. It has only been recently that I learned one of Marion’s secrets.  Everyone likes to know a good secret, so I’ll share it with you:  the Carolina Marsh Tacky horse.  

So what is a Carolina Marsh Tacky horse?  The Marsh Tacky evolved from the horses brought to the coast of South Carolina by the Spanish more than 500 years ago, long before the American Revolution.  These little horses were tough.  They (or their ancestors) survived a grueling Atlantic voyage.  When they got to the Americas, life was hard.  Often horses would escape the Spanish or were simply abandoned to the wild.  They formed wild herds and roamed the coast and the outer banks of North and South Carolina for years.  At one point in history, the British attempted to tax fences put up by the Colonists.  To avoid the fence tax, colonial livestock was moved to the islands or peninsulas on the coast.  There, it could be left to graze until needed with a minimum of fencing (and therefore taxes) required.  Gullah used the wild horses that they rounded up and tamed for work on Hilton Head Island.  Gullah horses and the Colonial live stock bred with the wild Marsh Tacky herds.  The herds survived the harsh conditions, requiring very little and being extremely tough.  They became their own breed.  The American Livestock Breeds Conservancy has found the Marsh Tacky to be a unique, gaited horse.  This horse is unlike any other horse anywhere in the world.  It is truly South Carolinian.  It is living, breathing history.

So what does this have to do with Francis Marion and the Revolutionary War?  Well, that War was not like the wars fought today.  Marion’s band was not a well-equipped unit.  The Continental Army was new.  It was all volunteer.  It was most certainly not rich.  Each man brought his own weapon and his own horse.  At the time, the Marsh Tacky horse was the most common horse in the low country of South Carolina.  These horses were well suited to get in and out of swamp land, something that the larger horses brought over by the British could not do.  Marion had a life long love of horses.  I am sure he appreciated the Marsh Tacky and all it was capable of accomplishing.

Not only were the British out-foxed by Marion, they were out-horsed by him, too.

Ultimately, the Marsh Tacky evolved to the sturdy, well balanced 14 hand horse that lives today.  For many years, these horses were wild on Hilton Head Island.  The bridge and subsequent development ended that.  Thought by some already to be extinct, this little horse is still alive.  There are estimated to be around 220 Marsh Tacky horses left in the world.  The Tackys have come to represent more than just horses.  They represent a connection to the past.  They are a prime example of the South’s ability to adapt and thrive, no matter what.  Long after the Revolution, they were used in the Civil War and as recently as World War II.  They represent freedom, both in the fights that they participated in long ago and in their fight to survive now.  If not for their contributions to the Revolutionary War, we might not have defeated Lord Cornwallis and become our own country.  If not for these sturdy, tough little horses, it might not have been the Constitution of the United States of America that we first year law students complained so about studying.

So you can breathe a sigh of relief.  This animal is not yet gone, only to be remembered in the pages of old journals and history books.  This animal still has a chance.  And you can help it.  The Carolina Marsh Tacky Association was instrumental in getting a bill introduced in the State Senate to name the Carolina Marsh Tacky the State Heritage Horse of South Carolina.  You can find this bill at:  www.scstatehouse.gov/sess118_2009-2010/bills/1030.htm.  

Please encourage your State Senator to support State Bill 1030.  Recognition of this horse as the State Heritage Horse would help to maintain the preservation efforts of this critically endangered breed and insure future protection of the Carolina Marsh Tacky.  The passage of this bill will help this truly living, breathing history to continue to live and breathe.

General Francis Marion died on February 27, 1795.  Here, at the anniversary of his death, this column is intended to help honor his and his horses’ contributions to our freedom.  Without the legendary General Francis Marion, the “Swamp Fox”, we might not have won the Revolutionary War.  Without the legendary Carolina Marsh Tacky, Francis Marion might not have become legendary.  

On February 28, 2010, the 2nd annual Carolina Marsh Tacky races will be held on Hilton Head Island as part of the Gullah Festival.  

The Carolina Marsh Tacky Association can be found at:  www.marshtacky.org

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**

Legal Pad: Guns and Domestic Violence a Loaded Issue

I spend a good bit of time in the Anderson County Family Court.  I see a lot of interesting things there.  Most are sad.  However, a recent Order of Protection Hearing, though somewhat routine on the surface, was thought provoking.

I have been a prosecutor, in one form or another, for almost two decades now.  I’ve also been involved in my fair share of nasty divorce cases.  As such, I am vehemently opposed to domestic violence in all its forms.  I am also, however, an ardent supporter of Second Amendment rights.  The Second Amendment states that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Our Courts have interpreted this provision to apply to a citizen’s right to keep and bear arms.  

Patrick Henry might help us shed some light on this.  A fiery young Virginia lawyer, and great figure of the American Revolution, he is famous for saying “Give me liberty or give me death.”  He was also a proponent of the right to bear arms.  He said  “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”  He also said “the great object is that every man be armed”.  He understood the need for a citizenry to bear arms.  Our roots as an armed nation go way back.  Without the shot heard round the world, we would all be British citizens today.  But I digress.  

The situation before the 21st century Family Court was something like this:  wife files for an Order of Protection, alleging that husband had shoved her and prevented her from leaving the residence.  She said that she hit her head during the scuffle.  She did not have any injuries and did not seek or need any medical attention.  She said she was afraid of her husband and that he had hit her before.  No allegations of any gun violence toward her or anyone else were made.  Both these parties appeared to reasonably nice people, with jobs, a nice home and good friends.  Upon questioning by the Court, the wife stated that she was afraid that her husband was going to shoot her.  She said that he had not threatened to shoot her, but she was still afraid of that.  Her husband, it turns out, is a hunter.  He has several firearms.  Husband’s lawyer raised the issue that the husband is a hunter.  Wife stated that “hunting season is over” and she did not think her husband should have a gun.  

The fourth page of the Family Court’s form order requires the Judge to answer three questions.  If the answers to those questions are “yes”, then the abuser cannot legally possess, transport, ship or receive any firearm or ammunition, pursuant to 18 U.S.C. Section 922.  All of this transpires in a hearing that takes about fifteen minutes.  By the end of this particular hearing, husband was prohibited from having his guns.  There are criminal penalties for the violation of this law.

So now what?  This Order of Protection will expire within six to twelve months of the order being issued.  What does the husband do with his guns right now?  If they are at home, he can’t go home.  He can’t put them in his car and take them somewhere else.  He can’t even ship them to someone else via UPS.  Is he obligated to call the Sheriff’s Office and tell them to come and get his likely very expensive hunting rifles?  If he does that, what happens to them when the Order of Protection expires?  Would the wife even want him to do that, as they are likely marital assets?  After all, a divorce is likely be filed soon.   Wife will want her fair share of the value of those guns.  Her attorney may want to leverage the guns against some asset the wife wants.  The possibilities are endless.  The questions many; the answers few.

The problem is that compounded by the statistics.  South Carolina Coalition Against Domestic Violence and Sexual Assault (SCCADVASA) reports that in 2003, 36 women in South Carolina were murdered by their domestic partner.  SC ranked sixth in the nation for men who murder women.  Domestic violence is the leading cause of injuries to women age 15 to 44, more common than auto-accidents, mugging, and cancer combined.  A woman is beaten by her boyfriend or husband every 12 seconds in the United States.   However, a relatively small percentage of these violent acts involve the use of firearms, according to the Violence Policy Center.  Yet, a woman is far more likely to be killed by her intimate partner.  So, while a woman is at a higher risk for being murdered by her intimate partner, the likelihood that she will be shot by him (as opposed to beaten or stabbed) is not significantly higher.  There does not seem to be a correlation between gun ownership and wife beating.   In the 40 states with concealed carry laws, other criminal activity has declined.  According to the NRA, gun ownership is at an all time high.  The nation’s violent crime rate has declined 40% since 1991.  States with right to carry laws have lower crime rates.  So there does seem to be a correlation between gun ownership and citizen safety, at least with regard to crimes committed on strangers.

The flip side of this is the argument that if an abuser is not in control of himself, he should not have a gun.  That makes sense.  If he can’t control his actions and has in fact injured his wife, can he be trusted to be responsible with that hunting rifle?  So the law takes the right to have the gun away.   But few are actually prosecuted for having the gun after an Order of Protection is entered.  So does this law work?  I don’t know.

But I return to my original conundrum.  What to do with the guns right now?  What happens when the Order of Protection expires?  By then, the couple has either filed for divorce or reconciled.  Reconciliations are extremely common among victims of domestic violence.  The reasons for that are not entirely clear to me.  Some of them were surely false reports to begin with.  Others seem to feel trapped by the relationship, with no other options.   But for whatever reason, they go home.  Some get killed, some do fine.  

So where do I stand on these issues?  A friend recently pointed out to me that anecdotal evidence is good for rallying the troops, but not so good as a basis for policy making.  Maybe he is right about that.  Maybe this should be addressed on a case by case basis.  Maybe the gun issue should get a separate, more in-depth hearing than a fifteen minute Order of Protection hearing.  I think that is probably the best answer.  I am against domestic violence.  I am a second amendment supporter.  I don’t think the two positions have to be inconsistent.  

I will leave you with two quotes:

“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?”  Patrick Henry.

“I’m afraid this man will kill me someday.”  Nicole Brown Simpson

Legal Pad: Making the Law Work for You

You’ve heard the one about the lawyer….right?  Everyone loves a good lawyer joke.   Personally,  I just love to hear that often misquoted Shakespearean reference “The first thing we do, let’s kill all the lawyers.”  But more about that later.  Lawyers are good fodder for making fun and the bane of society’s existence. That is, until you need one.  Then, all of sudden, in the middle of the night, the phone rings and you find your teenage son in jail.  Or, you come home to find your wife in bed with your best friend.  Who you gonna call?  I doubt it will be Ghost Busters.  No, you’ll call a lawyer.  And that’s a good call. 

Here’s why.  Think of life as a board game to navigate.  Lawyers are the only ones who have read and memorized the rules.  Added to that knowledge data base is the skill to manipulate the rules, within the rules themselves.  That is the key to making the law work for you.  It’s not a do it yourself proposition.

The world of do it yourself legal work is scary to me.  Commercial websites and even our own Supreme Court have forms that are designed to avoid the Bar.  But these forms have serious limitations, and in my opinion, do not serve the needs of most people.  Let’s take a look at the new uncontested divorce forms that are available online.  These forms are free.  Seems like a good deal, right?  Well, these forms are perfect if you and your spouse are in complete agreement on all points.  That is rarity in the world of Family Court. 

The instructions for the do-it-yourself forms are ten pages long.  The very first part of the instructions states in bold type:  “Warning:  You are strongly encouraged to seek the advice of an attorney before filing any legal matter.”  Yet, despite this warning, many people continue to file a “Self-Represented Litigant Simple Divorce Packet.”  They ignore the further caution in the instructions that states “While the self-represented litigant may not incur the attorney expense, the self-represented litigant does not have the expert guidance that an attorney can provide.” 

Here are just a few of the problems that I have seen arise in the filing of a “self-represented divorce.”  The first and most common problem is that the spouse who is served with these papers immediately goes and hires an attorney, who files paperwork that renders the case contested, thus defeating the purpose of the “self-represented divorce.”  In these cases, the Plaintiff, who is the filing party, finds him or herself in the position of being against a seasoned attorney.  Clearly, that is a disadvantage.  The only workable and sane solution is to get an attorney.  Another problem I often see is that the “self-represented litigant” either does not complete all the forms or does not complete them correctly.  There are nineteen (19) forms in the self-represented packet.   The forms contain terms like a vinculo matrimonii and in forma pauperis.  These are not every day terms.  If the forms are not done correctly, the Judge cannot grant the divorce on the day of the hearing.  This is a problem.  It takes several months to get a hearing date.  You don’t want to waste it!  If a divorce has to be rescheduled, that can add several weeks to the wait.  But I think perhaps the worst thing I see in the do-it-yourself divorce is a person who fails to realize what the law can do for him or for her.  For example, alimony is a complicated area of the law.  There is a Code section that sets forth the criteria for whether or not alimony is awarded.    Retirement accounts are another complex area.  Persons who are getting a do-it-yourself divorce often miss out on valuable benefits that they could have ordered, if they knew about them.   Child custody issues are also quite complex.  There are tax issues in divorces.  There are property issues in divorces.  I have practiced in the divorce arena for over fifteen (15) years. I continue to learn new things and new ways to benefit my clients.  Our law continues to evolve and change.   Just last year, the state legislature re-numbered the entire children’s code.  Last week, our state Supreme Court updated all of the forms used by our Courts.  New court opinions are posted weekly and have far reaching implications.  Only attorneys have the knowledge and skill necessary to get a case through any court.

Before you go to court alone, ask yourself one question.  If your gall bladder was full of stones, would you try to remove it yourself?  If that doesn’t decide it for you, then I don’t know what will.

So let’s go back to Shakespeare.  The play is the second part of King Henry VI.  The quote can be found at Act IV, Scene II.  The character who speaks the infamous line is Dick, the Butcher.   Dick is a repulsive and evil character.  At this juncture of the play, he is both encouraging and to a certain degree mocking Jack Cade, who is attempting to overthrow the government and become king.  Dick offers the suggestion to “kill all the lawyers” as a way to insure anarchy.  Immediately following this quote, Jack Cade and his mob brutally murder the Clerk of Chatham because he can write his name!   So clearly, this quote is not meant, by Shakespeare, as an insult to the legal profession.  To the contrary, even Dick the Butcher realizes that lawyers pose a threat to Cade’s revolution.  That is because lawyers know the rules and aren’t afraid to use them.  Shakespeare wrote this play in the late 1500s.  The need for lawyers has existed for a long time.  Taking the quote out of context is somewhat akin to taking Biblical quotes out of context.  All quotes have to be in context to be meaningful.  Sometimes it takes a lawyer to realize that.

So, the next time you have a problem like your son landing in jail or your best friend sleeping with your wife, who you gonna call?  I hope it’s a lawyer.  And be sure to tell the lawyer a good doctor joke at your first appointment!
**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**

Legal Pad: We All Have Civic Duty

By M.J. Goodwin

Being a lawyer has its perks.  I think one of the best of them is the “war stories.”  Two of the best places to hear “war stories” are in Family Court and Criminal Court.  Both places are filled with emotionally charged cases and interesting, flawed characters worthy of a spot in a Shakespearian play, both comedies and tragedies.  Some of these “war stories” make it to the daily news.  Most do not. 

I  heard about a couple who hated each other so much that the wife took all the light bulbs out of the house when she vacated.  The husband returned home to total darkness.  I have heard lurid tales of adultery, some with pictures!  I have represented criminals who called the police on themselves while reporting that the neighborhood drug dealer ripped them off.  Guess who went to jail?

I've heard (and told) my share of these stories over the years.  I hope this column will be a chance to share some of the better ones, with names and other facts changed to protect the guilty, of course.  I certainly want the reader to be entertained.  But I also think this column is an important venue to teach every day people about what goes on in Court.  I continue to be amazed at how little many otherwise well educated people actually know about what goes on in Court.

So today's “story” is about a woman we'll call Daphne.  Daphne has been married for 25 years.  She put her own career on hold to support her husband as a stay at home wife and mother.  I do not say that she “did not work” because that would not be true.  She worked very hard as a wife and mother.  She and her husband, John, are well liked in the community, active in their church and have a pretty good lifestyle, even during the recession.  Daphne showed up in my office for an emergency appointment after a particularly difficult evening:  her 16 year old daughter revealed that John, the child's father, has been molesting her for three years.  Daphne is understandably devastated.  She wants to call the police and have her husband arrested.  She also wants to file for divorce.  The first goal is easy.  We make the appropriate phone calls and John is arrested and confesses immediately.  The second goal, believe it or not, is more difficult. 

Daphne has no legal grounds for divorce.

This reality is unbelievable to most people, including me.  In South Carolina, there are a limited number of ways, also know as grounds, to file for divorce.  They are:  adultery, physical (not mental) abuse, habitual abuse of drugs and/or alcohol and abandonment.  There is also the “no fault” ground of irreconcilable differences.  However, to use that one, the parties have to have been separated for more than one year.  Daphne's only recourse is to file for an Order of Separate Maintenance and wait a year to get a divorce. 

The good news is that Daphne has a 25 year marriage and clearly it's an alimony case, if her husband can make bond, get of jail and go back to work.  The bad news is that he might not be able to make bond and even if he does, his employer may not want him back because of the charges against him. 

Daphne clearly has no choice but to report the abuse.  Failure to do so could result in her losing her children to the foster care system.  But the legal system affords her few options beyond that.  How will she pay the mortgage?  How will she buy groceries?  Who will want to hire a 46 year old divorcee with no real world work experience in this economic climate?

All these are questions that face the Family Court every day.  All these problems have only limited legal remedies.  Fortunately, Daphne has had a good outcome in her case.  Her husband did make bond and was allowed to return to work.  He is paying alimony and child support.  Despite this,  their standard of living has declined dramatically.   It is just a cold hard fact that two households cost more than one.  Their daughter is in counseling.  Criminal charges are still pending.  So the battle is far from over….and the “war stories” will continue.

So what can the average person do about these injustices?  Laws are enacted by our State Legislature.  If you have an idea about how to improve things, I believe it is your civic duty to talk to your elected officials about changing the laws.  I firmly believe that a credible case of child abuse should be a ground for divorce.  Daphne should not have to remain married to John for a whole year and file for divorce on irreconcilable differences grounds.  But for now, that is all she can do.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**