Monthly Archives: August 2015

When Guests Overstay Their Welcome How Can You Get Them Out of Your Apartment

It happens to most of us at some point or another: a house guest comes to stay for a while, but ends up freeloading far longer than expected. When this happens, what can you do to get your pesky house guest to leave? Does the law offer any solutions?
Trespassing Laws

Your first thought might be to call the cops and report the overstaying house guest as a trespasser. Laws vary from state to state, but in most cases, a person commits the crime of trespass by entering or remaining in a building or on land without permission. Thus, someone who remains at a party after being asked to leave is a trespasser.

Unfortunately, if someone has taken up residence in your house, trespassing may no longer be an option. For example, if they have changed their mailing address (particularly with your permission), paid rent at some point, or if your state recognizes squatting rights, you may have to do more than simply call the police to report a trespasser.

House guest or tenant?

All too often, police officers become wary of getting involved in domestic disputes or tossing out overstaying house guests, because they fear the guest may actually be a tenant. If someone has become a tenant, they are entitled to certain legal protections. This is true even if there is no lease agreement between you and the house guest. While state laws vary, landlords cannot simply toss out tenants as trespassers, but must instead proceed through strict procedures. These procedures usually include giving notice to the tenant, filing an eviction lawsuit, and obtaining a final judgment from a court. The eviction is then carried out by a sheriff.

Fortunately, under the laws in most states, guests (even those that have stayed longer than a few days) do not become tenants due to the duration of their stay. However, a police officer has no way of knowing whether your guest is a trespasser or a tenant, so they will usually refuse to remove the person just in case you are trying to skip the eviction process. If that happens, you may have to file an action in court to eject the house guest and for civil trespass.

How to avoid letting a guest become a tenant

You may have allowed someone to stay in your property out of the kindness of your heart. But, as you have likely discovered, some good deeds lead to nothing but headaches. In the spirit of goodwill, your friend may have offered to give you a few dollars to defray the cost of living with you. He or she may have also changed mailing addresses to your property. It all seems innocent enough at first, but it can create problems down the road.

If you accept money for letting the person stay with you, that may have created a landlord-tenant relationship. If that is the case, your house guest may become entitled to eviction protection under state landlord-tenant laws. Similarly, allowing a person to receive mail at your address may also be evidence that he or she is a tenant.

Before agreeing to let someone stay with you for any length of time, make sure you understand the laws in your state so that you do not inadvertently allow your guest to become a tenant. It may be harder to get rid of your unwanted house guest if you have not taken these precautions, and will likely require legal assistance.

How a Distracted Walking Accident Affects a Pedestrian Accident Claim

In order to file a claim against a driver who hit you while walking you need to prove that you were not at full fault for the accident. If the driver can prove that this was a distracted walking accident and you therefore contributed to it by not paying attention to your surroundings, you may not be able to recover as much or any of the settlement to which you are entitled.
It pays to stay alert when you’re walking, especially when traveling near busy roads. Distracted walking is one of the main reasons many Texas pedestrians end up being hit by vehicles every year. With just a simple change in your walking habits, you could reduce your risk of becoming another pedestrian injury statistic.

Types of Distracted Walking and Their Risks

Anything that takes your focus off of your surroundings is considered distracted walking. Visual impairments like looking at your cell phone count as do audio distractions like listening to music with earbuds or headphones. Basically, if you step off the curb at a non-designated crossing area for pedestrians, when there is one available, then it is likely the driver will hit you with a distracted walking accusation. Even if there is no crosswalk painted on the ground, it is accepted behavior to cross at an intersection rather than the middle of the road.

When you take your eyes off the path in front of you, it increases your risk of tripping and falling into hazardous areas. Not listening to your surroundings could cause you to miss vehicles coming up from behind or emergency vehicles that are approaching at high rates of speed. Letting your mind stray from safely reaching your destination could cause you to wander off a safe sidewalk or out of a crosswalk and into traffic.

Distracted Walking and Pedestrian Injury Claims

To file a pedestrian injury claim, you need to be able to prove that the driver who hit you was more than half at fault for causing the accident. Therefore, if you were found to be listening to loud music and texting on your smartphone when you stepped into the road, the driver who hit you could argue that there was no time to stop because you abruptly walked into his or her path.

Your negligence in terms of keeping yourself safe while walking near traffic can reduce the amount of your injury settlement or cause the judge to dismiss it outright. Therefore, it is best to have an attorney on your side to help you develop your injury claim and help you seek the best outcome possible.

Even if you were guilty of distracted walking, if the driver was also acting recklessly such as speeding or driving while drunk, he or she may be partially at fault for causing the accident. The driver’s negligence still allows you to recover some of the damages you suffered from the crash.

If you have any doubts about your right to recovery after a pedestrian accident, contact a Texas pedestrian lawyer for help with your claim.

Child Custody After Common Law Marriages

Common law marriage used to be much more widely accepted than it is today. Today, only a handful of states recognize common law marriage. But, in those states that do, what is the process for child custody when the spouses separate?
Many have misconceptions about the modern applicability of common law marriage concepts. First, it is important to note that just because two people live together for seven years or more, they are not automatically common law spouses. The institution of common law marriage came about due to the problem people once had getting to places where they could properly wed before clergy or justices of the peace. Today, though, since transportation is rarely an issue, common law marriage is a little more complicated. Common law married couples never obtain a marriage license or fulfill the state’s statutory marriage laws, but typically cohabit for at least one year (longer in some states) with an agreement to be married and presenting themselves to others as husband and wife.

Only a small number of states still allow common law marriages. They include: Alabama, Colorado, District of Columbia, Georgia (if created prior to 1997), Idaho (if created before 1996), Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Ohio (if created prior to 10/1991), Oklahoma, Pennsylvania (if created before 9/2003), Rhode Island, South Carolina, Texas and Utah. Note that same-sex couples have never been able to benefit from common law marriage, and this remains true today.

Couples that become common law spouses in states that recognize such arrangements can move to other states and still have their relationships recognized thanks to the US Constitution’s full faith and credit rule. The Constitution compels states to recognize a marriage validly made under another state’s laws, even if that state does not recognize the same marriage requirements, including common law marriage.

Despite the fact that most states do not recognize common law marriages, when these relationships end almost every state will handle the situation very similarly. Common law marriages end, just as regular ones, with either the death of one of the spouses or by divorce. The process of filing for divorce is just as in a regular, statutory marriage: one or both spouses file a petition for divorce, property is distributed among the spouses, and a court makes determinations about custody, visitation, and support.

Just as in other divorces, courts in divorces for common law marriages will determine custody based on what is in the best interests of the children. State laws vary slightly between jurisdictions, but each typically has a list of factors that judges must consider in determining what is in the best interests of the children. Modern laws tend to favor joint custody (or “shared parental responsibility”), believing that children benefit from the influence of both parents, not just one. However, the aforementioned factors will help a court determine if one parent is less fit than another, has less time or means to care for the children, and whether custody should shift from an even split to favoring one parent over the other. The factors that courts consider often include issues such as the child’s wishes (if the child is old enough), which parent was the child’s primary caregiver when the marriage was intact, any disabilities that might impair a parent’s ability to care for the child, any special needs of the child, incidents of domestic violence, etc.

Of course, as with any legal proceeding, the spouses in a divorce can negotiate a settlement. By agreeing to the best method of child custody and support, parents can avoid a great deal of unnecessary litigation that is rarely in the interest of any of the parties or the children. The court will ultimately have to sign off on any agreements made regarding the children in order to ensure that the best interests of the children are preserved. Assuming that they are, the court will often sign off on the agreements of the party.

Of course, with such important considerations at issue, it would be wise for you to speak with an attorney in your area. You can use the lawyer search function on HG.org to find an attorney in your area with experience in divorce, child custody, and common law marriage issues.

Fighting Collection After Judgment

Losing a lawsuit stinks. Getting slapped with a court judgment will leave you filled with dread and wondering what you can do next. This is especially true if you lack the resources to immediately pay the judgment. So, what can you do after you have been hit with an adverse court ruling?
First, the bad news: after a judgment ruling, the creditor can take steps to seize part of your wages, freeze your bank account, or take and sell your personal belongings. Your adversary from the lawsuit now becomes a “judgment creditor,” and can take legal steps to seize the judgment amount. It can also charge interest at a rates set by the law (usually between 5 to 18 percent).

The good news is that a final judgment is often less final than it may seem. Moreover, even if you cannot get the judgment overturned, you may be able to deal with the debt in other ways. In many ways, a final judgment is really just the beginning of a new phase of your legal battle. While this may feel exhausting (especially after a protracted court battle) it also provides more options.

Appeal

The first thing you can do is fight the decision. There are several ways to do this, and the circumstances will vary based on both the laws in your jurisdiction as well as the particular facts of your case. For example, in many consumer debt cases, judgments can be entered by default, and there are a number of ways to have default judgments overturned. Similarly, if you can show that the trial judge or jury made an error, you may be able to have the decision overturned on appeal. You might also be able to get a judge to reconsider a ruling if you can demonstrate that he or she made a mistake or was misled.

Settle the debt

Another option is to approach the other side with a settlement offer. Why would the holder of a judgment agree to give you a discount on the total amount they won in court? Because when you offer a settlement, you are taking away the expense and effort involved with trying to find and levy on your assets. If you can give cash in a lump sum, your offer may be even more appetizing for the opposition. After all, they would probably prefer to have some of the money now without having to fight to get it rather than getting all of the money later after a costly series of additional legal hurdles involved with seizing your assets. More importantly, it prevents them from getting wiped out should their collection efforts drive you into bankruptcy.

Consider bankruptcy

Most judgment debts become unsecured debts. As a result, they often force people into bankruptcy, especially if that person has expended a vast sum to fight a legal battle. Bankruptcy can allow one to avoid all or a portion of many judgment debts, provided that person qualifies for bankruptcy. Of course, bankruptcy has its own downsides, including a serious black mark on your credit report that will last for years.

Become judgment proof

A person with few assets and minimal income is often called “judgment proof.” A number of laws protect debtors from collection efforts that would make life impossible for them. It takes a lot of work to determine one’s wages, the amounts in their bank accounts, and to find eligible assets that can be seized. Thus, with either some planning or the circumstances of life, you can become judgment proof, making it impossible for your judgment creditor to take any action against you without losing more money than they could ever hope to obtain.