Thursday, January 21, 2010

Landlords & Tenants: What You Need to Know About Security Deposits

You are a tenant and you have moved out of the house or apartment you were renting.  Your landlord has assessed damage and wants to deduct them from your security deposit.  You dispute the damage.  What are your rights?

You are a landlord and have had a problem tenant move out, leaving behind a trail of damage.  What are your rights and obligations?

In Missouri, within 30 days of the tenant moving out, a landlord is required to provide the tenant with an itemized list in writing of the damages for which the security deposit is withheld and refund any remaining deposit balance.  This list and any refund should be sent to the last known address of the tenant (note to tenants: this is why it is a good idea to provide your old landlord with your new address).  The list of damages should be based on a walkthrough of the property, and the tenant has a right to receive written notice of the inspection and be present during the inspection.  It is probably a good idea, for both the landlord and tenant, to take pictures of any damage pointed out during the walkthrough, in case of later disputes.

Hopefully the tenant has not left your property in this condition!

Damages a landlord can deduct from a tenant's security deposit include unpaid rent, physical damage to the premises, and damages caused by the tenant terminating the lease early (if applicable).  Damages a landlord may NOT withhold from the deposit include "ordinary wear and tear" of the property.

NOTE: A landlord should be very careful not to deduct more than is reasonably justifiable, because a tenant can recover up to twice of any amount a landlord wrongfully withholds from the deposit.

Tuesday, January 19, 2010

Are You Entitled to a Child Support Modification?

The answer: it depends.

If there is already a court order for child support, a judge will have to find that changed circumstances exist that are continuous and substantial enough to make the amount of support unreasonable.  Usually this means that the amount of support you would be obligated to pay or receive because of the changed circumstances is 20% or more above or below what support is now.  If modifying support would result in a change of less than 20%, it's going to be much harder to convince a judge that not modifying support to the new amount would be unreasonable. 

How is support calculated?  The guidelines followed by courts take into account factors such as the income of both parents, expenses of both parents, and the number of overnight stays the children have with the noncustodial parent.  Any wrongdoing on the part of either parent could also come into play when the judge makes a child support determination.

The bottom line is that whether you should seek a modification really depends on your particular situation, and an attorney can be very helpful in helping you decide whether to seek a modification.

Friday, December 4, 2009

Got an MIP in Missouri?

You have a couple of options here.  But before we get to those, you first should hire an attorney, or at least consult one and get some legal advice for your unique situation.  Now for the options. 

Option 1: You can always plead not guilty and try the darn thing before a jury.

Option 2: Plead guilty and probably just get a fine.  This results as a conviction on your criminal record. 

Option 3: Have your attorney negotiate a plea agreement to plead guilty in return for an SIS and probation.  If you complete probation without violating your probation terms, you get no convictions on your criminal record.

Now, you might think that for most people the choice is clearly Option 3.  However, in Missouri you may be able to have an MIP conviction under Option 2 expunged after you turn 21, but you must have no other alcohol-related convictions or arrests since.  The hassle with this is you have to petition a court to expunge the record, and you always run the risk that the General Assembly will change the law to eliminate expungement of MIPs.

So which is better, Option 2 or 3?  Well, if you know you will not be able to abide by probation terms, Option 2 is probably the better choice.  If you agree with Homer and are going to violate probation and get a conviction anyway, why not plead guilty, pay your fine, and be done with it? 

On the other hand, if you think you can abide by probation, Option 3 may be the better choice since you won't have to mess with expunging your record after you turn 21, and you may not even be eligible for expungement depending on what happens between your MIP and your 21st birthday.

Friday, November 20, 2009

The Bankruptcy Debate

Clients considering bankruptcy often struggle with the decision.  They rightfully feel an obligation to pay back debts they owe and don't want to feel like they are "cheating" their creditors by filing for bankruptcy.  Or they are embarrassed that they are even considering bankruptcy, given the stigma that society (rightly or wrongly) often attaches to bankrupt debtors.  But in these difficult economic times, the reality for each of them is that debt has made their lives miserable, and they find themselves having to choose between making the minimum payments on their debts or buying groceries for their family.  The reality is that they need relief. 

That is just what the Bankruptcy Code is designed for, giving debtors relief from their debts so that they can come out from under the weight of their debts and receive a "fresh start."
If you desperately need relief from debt and are considering bankruptcy as an option, speak to a bankruptcy attorney.  They can help resolve any concerns you may have about filing and help you evaluate your particular situation to determine whether bankruptcy is the best option for you.  Relief may be only a phone call away.

Monday, November 16, 2009

Custody: To Modify, or Not to Modify?

I get calls occasionally from people unsure whether to get custody modifications in family law matters.  These usually occur in situations where they and their ex-spouse have voluntarily changed custody arrangements and want to know if they should get a court order modifying the prior court-ordered arrangments to the new arrangements.  The answer?  It depends.  Do you want the new custody arrangements to not change?  If so, then you should probably hire a lawyer and get a modification. 

Now, some people think that just because their ex-spouse agreed to the new custody arrangements that they will permit those arrangements to stay in effect, or at least will be reasonable in the future with agreeing to custody arrangements.  Maybe they will, and you have to be the judge.  But experience has shown that people who rely on the good faith of their ex are sometimes burned.  Remember: this person you divorced is someone you could not get along with, who violated your trust, or for whatever reason you could not stand to remain married to them.  Do you want them to be able to come back at a later time, in a year or even tomorrow, and say they have changed their mind?  Without a modification in hand, you have no guarantee you can keep custody arrangements the way they are (and you may find yourself purchasing a dartboard with your ex's face on it to work out the angst you are now feeling).

That's why in nearly every case, even if you and your ex-spouse cooperate on all levels post-divorce, it is safest to go ahead and get the modification.  In the very least, you should consult an attorney in the matter (and probably be told you need the modification).

Friday, November 13, 2009

Recent Change in MIP Law

The Missouri General Assembly recently amended the Minor in Possession statute, RSMo 311.325, so that any person under 21 who attempts to purchase/purchases or possesses alcohol, or who is "visibly in an intoxicated condition" (more on that later) gives implied consent to a chemical test such as a breathalyzer test.  This type of "implied consent" is used under the DWI statute to justify suspension of a person's driver's license if they refuse to take a breathalyzer test.  So now, a person charged with MIP can also have their license suspended if they refuse to take a breathalyzer test.

Unfortunately, "visibly in an intoxicated condition" gives a police officer wide latitude in citing someone for an MIP, since "intoxicated condition" is defined in RSMo 577.001 as being "under the influence of alcohol."  Presumably then, a minor who exhibits any visible of sign of being under the influence of alcohol, no matter how slight, could be cited for an MIP and expected to take a breathalyzer test or face suspension of his or her license.

Hiring a lawyer when charged with an MIP would be highly recommended to protect one's rights, especially considering the driver's license consequences that now accompany the criminal punishments.

Thursday, November 12, 2009

City of Jackson development plan

Not completely relevant, but the City of Jackson is working on a plan to address traffic issues on U.S. 61 and development of East Main Street.  I mainly bring it up because our law firm is currently constructing a new building near the corner of East Main and Lacey Streets, the area proposed for development by the City's plan.  The plan, along with a brief mention of our firm's building, is discussed in an article at the Southeast Missourian's website, which you can access here.