February 24, 2021
So, you got a letter or notice in the mail. It mentions “subrogation,” and you are left scratching your head, wondering what’s this all about? Am I in trouble? Do I need a lawyer?
Maybe. But it would help if you understood subrogation and considered how it applies in your particular circumstances.
First, let’s look at the word itself. It is defined as follows:
Subrogation (səb-rə-gay-shən) n. (15c) 1. The substitution of one party for another whose debt the party pays, entitling the paying party to rights, remedies, or securities that would otherwise belong to the debtor…. Subrogation most commonly arises in relation to insurance policies. 2. The equitable remedy by which such a substitution takes place. 3. The principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third party with respect to any loss covered by the policy.
SUBROGATION, Black’s Law Dictionary (11th ed. 2019).
This definition is too technical for most people, but the idea is this: If someone else, usually an insurance company, has paid a debt that you owe, that company usually has a right to get back what it paid on your behalf if someone else is legally obligated to compensate you.
Still confused? I don’t blame you. Let me use a couple of examples to explain.
Suppose you were in an auto accident and you were injured. Your health insurance company has paid your medical bills. The health insurer may be writing to you in order to find out about the circumstances of your accident.
Why does it care? Because, if the other driver is legally responsible for your injuries, your health insurer has a legal right to collect what it paid for you from that driver (or the driver’s liability insurance company).
How are you involved? First, the insurance company needs to understand the facts to evaluate the claim. Second, if it has a claim, that claim arises from your legal right to recover your damages from that other driver. So the health insurer may be trying to find out whether you intend to pursue your claim yourself. If you do, your health insurer will likely wait for you to do that and then demand that you pay back what it paid on your behalf, less a share of your costs of recovery.
If you don’t plan to take steps to recover your damages from the other driver, your health insurer may choose to sue in your name!
Should you talk to a lawyer about such a notice? Probably. If your health insurer thinks you have a right to recover your damages, maybe you should pursue them on your own. You may have broader damages – such as for pain and suffering — than your health insurer would. You might want to think about pursuing the claim yourself.
There are other, similar situations where an insurance company might have a right to pursue a claim based on what it has paid for your benefit, such as for damage to your car. It works the same way.
If you were injured, you can probably find a lawyer who will meet with you to discuss the situation without charging you a fee. Most personal injury lawyers don’t charge for initial consultations.
Another common situation in which you might hear the term “subrogation,” is if the shoe is on the other foot. That is to say, if it is alleged that you caused damage. The other party’s insurance company may be threatening to sue you to recover for benefits because of that damage. Or it may actually be suing you for such damages.
In that situation, if you have liability insurance, you should notify your insurance carrier right away. If you don’t have insurance, you’ll almost certainly have to hire a lawyer, unless you are prepared to pay the claim. If you get sued and a judgment is awarded against you, it will harm your credit rating, your wages may be garnished, and in some states, your driver’s license may be suspended until you pay the judgement off.
Of course, there are other situations where subrogation comes into play. But hopefully, thanks to Rich Cassidy Law, you now understand the basics.
July 17, 2020
In many contested divorces the contest involves issues of custody of children. Frequently these battles involve two parents who are both capable and competent care givers. Typically both parents love their children. Unfortunately, parents who are getting divorced have to learn how to share their children. In most cases, if the parents were good at sharing and cooperating together they probably would not be getting divorced.
Each person has their own reason for fighting for custody. For some people it is ego. For some, it is a desire to hurt their spouse. For others it is money. Some people have a genuine belief that the children are better with them than with the spouse.
Some people fight over custody because child support is tied to the issue of custody. If a parent doesn’t want to pay child support then he or she needs to obtain primary custody of the child. If primary custody is not available then shared custody with each parent having parenting time for one half of the time available is a goal. Even 50 / 50 custody can result in lower child support payments. Of course, the parent with the lower income may fight for custody only to get child support payments or higher child support payments.
Courts approach custody from the point of view of what is best for the child. The name for this concept is “the best interests of the child standard.” This simple statement gives a judge broad discretion in making a custody judgment. This standard can be difficult to translate into presenting evidence so attorney Alan J. Pransky would tell you to consider the following:
1.) What was the custody arrangement when the couple was together? Custody trials tend to have a lot of contradictory evidence. Each spouse tends to exaggerate the other spouses flaws and minimize their own. Start with the question of who was the primary custodial parent when the couple were together. Most couples have an allocation of responsibilities within the marriage. One spouse tends to be the primary wage earner and the other tends to be the primary housekeeper and child custodian. When the wage earner testifies how dangerous the other spouse is and how that spouse poses a threat to the child, ask “How did you go to work each day leaving the children in the care of this person you claim is a threat?” When day after day a parent is left alone with the children it is hard to believe that they are a danger to the children.
2) Which parent has the strongest bonds with the child? While children may love both of their parents, they usually choose one parent over another for comfort and security. When a child is injured, which parent do they seek for comfort and protection? As children get older, which parent do they feel more comfortable talking to? Children may indicate that they can’t imagine living separate from one parent but can easily imagine living separate from the other.
3) Each parent’s plan for taking care of the children. In order to argue for custody, a parent must provide care for a child 24 hours a day, every day that the child is with the parent. This means that the parent must have an appropriate physical setting. Do both parents have separate bedrooms or is a parent proposing to share a bed with the child? Where will the child be going to school? How will the child get to school? If a parent proposes 50 / 50 custody but lives an hour away from the other parent then the child will be subjected to unreasonable commuting to get to and from school. How will the parent provide care to the child when working? How will a parent care for a sick child that can’t go to school? Will the child live in the same home as prior to the divorce and be able to continue to play with the same friends? Judges may call this evidence “stability and continuity in the child’s life” but once can tend to think of it as having a better parenting plan.
4) For many judges, the ultimate measure of the best interests of the child is the success the child achieves in school. This means that each parenting plan should be considered in terms of how it encourages success in school. A judge should consider how each parent deals with the child’s homework and school preparation. Are the parents consistent on bedtimes on school nights? How have the parents interacted with teachers in the past?
5) A court will also consider living arrangements and lifestyles of each parent andhow such circumstances may affect the child. The mere fact that a parent intends to live with a new romantic partner should not determine child custody. While some states consider such a living arrangement to be morally harmful to the child, most states don’t consider such moral evidence. Instead, courts should consider how the new love interest treats the children. Any live in partners will have to be involved in care giving for the children. A Court should view cohabitation from the viewpoint of benefits and disadvantages to the way the children are treated.
6) Increasingly courts are considering the manner in which each parent interacts with the children about the other parent. Parents should protect the child’s relationship with both parents. No derogatory comments about the other parent. No excessive questioning the child about activities with the other parent. No blaming the spouse for the termination of the marriage. Potential or actual parental alienation should be considered by a judge in a custody decision. Most experts advocate that children need quality time with both parents. There is a current trend to give both parents significant time with the child.
Contested child custody cases can be very difficult. If you can’t agree with your spouse about custody of your children you should consult a child custody lawyer for advice and assistance.
June 1, 2020
The COVID-19 Pandemic is clearly unprecedented in the course of human history, impacting daily life like no event ever before. If you are divorced or contemplating a divorce, here are some important things to know about how COVID-19 will affect your life:
- Courts Are Open – While many non-essential businesses are closed, courts technically remain open. Even a pandemic does not prevent the public’s right to access the justice system. It is supremely important to parties of divorce and custody cases for courts to continue to function because of the ever-evolving nature of family law disputes. Many divorce courts are using tele-video conference (e.g., Zoom, Google Meet, or Microsoft Teams) to conduct status conferences, hearings on contested motions, and even trials. There is no reason to wait until the pandemic is over or for the country to “reopen”; the courts are functioning.
- Child Support Modification – Most child support laws allow a modification if there is a substantial change in circumstances, which can include the significant increase or decrease in income by one of the parents. The Coronavirus Pandemic has caused an economic calamity, with unemployment at historic levels. Once the Paycheck Protection Program runs out, and people stop receiving full unemployment benefits, income levels will drop. If you lost your job, or your business has experienced a downturn, this would be a substantial change in circumstances that you can use as a basis for modifying your child support obligation. You have to act fast, however, as a child support obligation is extremely difficult if not impossible to get out of without paying, and you can be subject to interest and penalties.
- Spousal Support Abatement – Much like child support, spousal support (known as “alimony” or “maintenance”) can also be modifiable depending on the circumstances. The economic downturn of the COVD-19 pandemic is cause to seek a modification of support, or even an abatement. An “abatement” is a legal term meaning to stay or pause the support obligation. If you are paying spousal support, you may be able to abate your payments until you recover economically.
- Parenting Time – The pandemic is not a reason to interfere with the other parent’s visitation time with their child. Despite being a health disaster, many family law Courts have issued orders and guidelines stating that parenting time and visitation must continue as agreed or ordered in the era of social distancing. Many parents are expressing serious concern that the other parent is not adhering to social distancing guidelines. While a judge might ultimately agree that a parent is not doing enough to protect themselves, it should be brought to the court’s attention instead of simply refusing to exchange the children.
Thanks to our friends from Hecht Schondorf LLC for their insight into family law during the pandemic.