Full text of question: I have custody of my three children but my former husband keeps calling and threatening to leave the state with them if I don't agree to reduce my support award. He always denies that he makes these threats. I would like to record the telephone conversations so that I can prove that he is doing this. Would I be breaking the law if I tape record my former husband when he calls?
Answer: The Legislature enacted a law in 1985 which made the taping of telephone conversations illegal even if you are one of the parties to the conversation. In 1988 this law was declared unconstitutional by the Louisiana courts. At the present time, you may record telephone conversations with your husband without his knowledge or permission. It would be advisable, however, to seek legal advice before you make any recordings just to be sure the law hasn't changed yet again. Remember, you cannot record a telephone conversation unless you are a party to the conversation.
Full text of question: I am very close to my niece and nephew and have been a second father since they were born. My brother and his wife went through a messy divorce recently, she was awarded sole custody, and she has declared that no one in my family will be allowed to see the children again. Do I have any visitation rights as an uncle?
Answer: There is a Louisiana statute that provides a procedure for the award of visitation rights to any relative who does not have custody. The only requirement is that a judge find that it is in the best interest of the children to allow the visitation. You might be able to get visitation, but you must do it through a court proceeding.
See also our In-Depth Article on grandparent visitation.
Full text of question: I moved here from another state several years ago. My mother is dead and my father was never any help when I was growing up and going through college. My father remarried someone much younger and I doubt that I am in his will. Now that I live in Louisiana, what rights do the forced heirship laws give me against my father's estate?
Answer: Assuming your father does not live in Louisiana, you have no forced heirship rights against his estate. Forced heirship only applies to citizens of Louisiana. Since your father lives in another state, the laws of that state would control inheritance rights. In any event, the forced heirship laws were changed so that only children under the age of 24 years or children that are permanently disabled are now forced heirs.
Full text of question: When my husband and I divorced, he agreed to pay the mortgage note on our house. He filed bankruptcy a few months ago and the bank is now insisting that I make the payments or they will foreclose. How can they do this? What was the point in settling with my husband if he can now get out of his obligation?
Answer: You obligated yourself to the bank when you first bought your house and signed the mortgage. Any agreement you later make with your husband does not change your obligation to the bank. His obligation under the settlement agreement is a personal commitment to you and it can be extinguished in a bankruptcy. People frequently enter into community property settlements with the belief the problems are over only to find that they are not if a former spouse goes bankrupt. This will often force the other spouse to declare bankruptcy as well.
Full text of question: I have a grown son and a daughter. My son was constantly in trouble and ran away from home when he was eighteen rather than face theft charges. I have not heard from him in three years. I know we have forced heirship laws in this state, but it does not seem right that my son should get part of my estate when my daughter is much more deserving.
Answer: Forced heirs can be disinherited under certain circumstances. For example, you could disinherit your son if he struck you or attempted to strike you; if he has been guilty of cruel treatment towards you; if he has attempted to take your life; if he has refused to support you if you are in need and he has the means; or if he has been convicted of a crime that is punishable by death or life in prison. There is an additional ground for disinherison: if the child has refused to communicate with the parent for a period of at least two years after reaching eighteen. The child must know how to contact the parent and the child cannot be in the military during this time. You probably have the right to disinherit your son. This can only be done in a will. You must prepare a valid will and you must state the reasons you are disinheriting your son. Your son would then have no forced heirship rights unless he could show that you and he reconciled after you wrote the will, or that the reasons stated in the will for the disinherison were untrue.
Full text of question: I have been paying child support for many years for my two children. When my oldest child turned eighteen last year, my former wife agreed to allow me to cut my payments in half. I have heard that this type of agreement is not binding and that my ex-wife can sue me for back support. Did I make a mistake in trusting her?
Answer: You have to first look at the support judgment to see how it is worded. For example, if the judgment is for $150 per child for a total of $300 per month, the support obligation for the older child would automatically end when that child turns eighteen. If, on the other hand, the judgment was simply $300 for the support of the two children, the obligation would not change until both children were eighteen. An agreement to modify an award of support can be binding in certain circumstances. However, you face the problem of proving whether there really was an agreement and the exact terms of the agreement. What if your former wife sues you for back support and contempt? Can you prove that she agreed to the reduction? Did you both put the terms of the reduction in writing? The only safe way to modify any type of judgment is to go back into court and have the original judgment changed. If both parties agree to the change, this can be a simple procedure that may not require a court appearance. If you do not want to go to the trouble of changing the judgment, you should at least have a written agreement signed by your ex-wife. There is no guarantee, however, that a judge will necessarily recognize the agreement if it creates a hardship on the children.
Full text of question: A car ran into me while I was stopped at a red light. I was taken to the hospital for x-rays. There was no serious injury, but my neck has been sore for weeks. My car was probably a total wreck and I am without transportation. Am I entitled to a rental car? The other guy's insurance company has offered to settle the case for the book value of the car but I can't possibly buy a car in the same condition for the book price. Do I have to accept their offer? Should I press my claim for the injury to my neck? Should I have a lawyer, or can I do this myself?
Answer: The insurance company has to either pay to repair your car or pay you the local fair market value of the car. The "book" price of the car might approximate the fair market value, but you are not obligated to accept the book price. You can visit local car lots to see what similar cars are selling for and make your own case as to the local fair market value of your car.
The insurance company will probably owe you a rental car, but only until they either repair your car or decide that it is a total wreck. There are usually restrictions on the maximum daily amount they will pay for a rental car. Therefore, you should have this arranged before making any personal commitments to pay the rental. If you decide to accept their offer to settle the damage to your car, make sure that any releases you sign or any checks you endorse release the insurance company only for the property damage. Do not sign anything that releases all claims.
You have one year from the time of the accident to sue for personal injuries. It would be advisable to wait and see about the problems with your neck. It is not uncommon for this type of injury to suddenly become worse weeks or even months later. If you do not feel that you want to press a personal injury claim, you can probably represent yourself to recover the property damage. The insurance company should also settle with you for the hospital and any medical bills and they should be willing to pay you something for the pain and inconvenience that you have suffered. If you are satisfied with an offer, you do not need a lawyer. If you are not satisfied, you should hire a lawyer to represent you. In any event, do not let anyone rush you into signing something that you do not understand or feel right about. If you have any doubts, see a lawyer.
See also our In-Depth Article on car wrecks.
Full text of question: My father died several years ago but I have never heard anything about his estate. My mother still lives in the house, which is fine with me, but I know my father had a lot of money in savings. Shouldn't I have received some of this money? I don't want to upset my mother by discussing this with her, but it seems like I should have heard something by now.
Answer: There could be two reasons why you have heard nothing about your father's estate. It is very possible that a succession was never opened. If your mother is living in the house and has access to the bank accounts, it may not have occurred to her that there is any reason to take the legal steps necessary to settle your father's estate. Another possibility is that the succession was opened but you have no immediate rights to estate property. Although you may be an heir, your mother might have a usufruct over the portion of your father's estate that belongs to you. This would make you the naked owner of a portion of the estate without any right to actually possess the property while your mother has the usufruct. This usufruct would end if she remarries, unless your father had a will that made different arrangements. There are too many variables that would determine exactly what rights you have. For example, was there a will? Was a succession opened? Was your father's property community or separate? You need to discuss these questions openly with your mother.
Full text of question: When I went to court last month, my wife was awarded $400 per month child support. I have a friend like me with one child who makes about the same amount of money. He only has to pay $250 per month to support his child. It seems clear to me that my lawyer blew it and that I am now stuck having to pay more support than I should have to. Do I have any recourse against my lawyer?
Answer: People frequently compare notes on their support obligations and feel that they are paying too much because someone else is paying less. The fact is, your friend has a different set of facts that were presented to the judge. No two cases and no two judges are identical. The judge has the job of looking at the recommended amount of support from the guidelines, factoring in special needs, and considering other income available from current spouses. The judge is then supposed to take into account all these factors and arrive at an amount of support for your child. It is impossible to guess why the particular judge in your case arrived at the figure $400, although it is certainly within the normal range for this state. It might very well be that you "blew it" when you testified on the stand. Judges are usually pretty good at setting support that comes as close as possible to being fair to everyone, including the child. Stop trying to find someone to blame for what you imagine is an unfair amount of child support.
Full text of question: I am considering selling my house. A neighbor is interested and suggested that we could save a real estate commission by arranging the sale ourselves. We have tentatively agreed on a price, but don't know what to do next. Should we be trying to do this ourselves?
Answer: There is nothing wrong with trying to save money. The problem is, many people lose a great deal of money trying to save money. The major function of a real estate agent is to find a buyer for your house. Since you have already found a buyer, it would seem that you do not need an agent. However, have you stopped to consider whether the price your neighbor wants to pay is fair? Would you perhaps get more on the open market? Enough to more than make up for a commission? A real estate agent, among other things, would also screen potential buyers, prepare a purchase agreement, and help arrange financing.
Assuming you do not use an agent, the next step is to prepare a purchase agreement. Any agreement for the sale of real estate must be in writing. Also, the buyer is going to need a copy of the purchase agreement if he intends to apply for financing. At this point, you or the buyer should consult an attorney. It is customary for the buyer to pay the closing costs, so let him look into financing and let his mortgage company recommend the closing attorney.
Full text of question: My daughter is over eighteen and attending college. I have heard that my ex-husband is responsible for child support past the age of eighteen if the child is still in school. What can I do to make him help with my daughter's education?
Answer: There is a statute that would extend the obligation for child support past age 18 if the child is in a secondary school. This is frequently misunderstood to mean college. However, college is not considered secondary education. In any event, any support question for a child over 18 would have to be considered in a court hearing. Under a recent change in the law, either your daughter or the custodial parent can seek a continuation in child support.
Full text of question: I bought a house recently and got a very good deal. We went through all the formalities of a sale and I paid the seller in cash after getting a bank loan. The seller now says that he talked to a lawyer and he wants more money or he will take the house back. I told him that I thought he was crazy. A deal is a deal. Is there some way he can do what he threatens?
Answer: Whether you may have to pay more or return the house depends on what you paid. If the price you paid was less than one-half the value of the property, Louisiana law considers this lesion. Lesion means that a seller received so little for his property that he must have been mistaken and therefore not freely given his consent to the sale. The point at which a sale may present a lesion problem is when the seller receives less than one-half the actual value of the property. In other words, if the property was worth $50,000 but you paid only $20,000 for it, the seller can claim lesion. If he is successful, you would have the option of returning the property or making up the difference between what you paid and the actual value of the property.
Lesion is a remedy that is available only to the seller and only for the sale of immovable property (real estate). Lesion can also apply to the division of property among co-owners. In division cases, lesion can apply if the sale is for less then three-quarters of the actual value. Community property settlements because of divorce are an example of a division among co-owners that can raise the problem of lesion.
Full text of question: I recently moved here from Wisconsin. I have a will that my wife and I made several years ago. Is my will valid in Louisiana? Should I make a new will?
Answer: If your will was valid in the state of your domicile at the time the will was executed, it can be recognized as valid in Louisiana. This would be true even if the form of your Wisconsin will would be invalid under Louisiana law. However, the burden would be on your heirs to prove that your will was valid under Wisconsin law at the time you lived there. This involves getting certified copies of the Wisconsin statutes and proving to the judge's satisfaction that everything was done properly. The best way to avoid this potential problem is to have a new will prepared. Also, a new will can specifically address issues that are peculiar to Louisiana, like forced heirship and collation.
Full text of question: I have been married for twenty years. My husband has always worked and I have stayed home taking care of the children. Every month, my husband takes a part of his paycheck and puts it in a savings account in his name. I do not have access to this money and only he can withdraw funds. That money has always been a sore point with me. There have been many times that we have gone without because he refuses to touch a cent of "his" money. I would very much like to know exactly how much money there is. Do I have any right to the money in that bank account?
Answer: Assuming you have no marriage contract and that there is no judgment terminating the community, you own an undivided one-half interest in the savings account. You have an interest in the account because your husband's income is community property. The fact that he arranged an account with the bank to which only he has access, does not alter your right to your share of the money in that account. There are several methods you could use to find out how much is in the account. Short of filing for a separation and then seeking a division of the community, you could demand an accounting from your husband of all community property and debts. There are other legal remedies that would also force your husband to disclose the assets in the account and distribute your share to you. You would need to consult with an attorney for specific advice on how to force this information from your husband. However, we have found from experience that these actions frequently end up as separation suits. If you could convince your husband to consult an attorney, he would be advised that he has no right to keep this "separate" account from you. Retirement accounts are also community property. The fact that a company contributed some or even all of the assets does not matter.
See also our In-Depth Article on finding assets.
Full text of question: My father died recently and nobody seems particularly interested in taking care of the legal work. Are there time deadlines for winding up an estate? Are there also deadlines for starting the process?
Answer: Under both Louisiana and federal law, any death taxes that may be due from the estate or from the heirs must be paid no later than nine months after the date of death. So, if taxes are due and remain unpaid after nine months, penalty and interest start to accrue. You could therefore say that the time limit to wind up an estate is nine months from the date of death unless an extension is granted for filing the tax returns. As for starting the process, the sooner it is started the better. The attorney for the estate will need a listing of assets and liabilities to be able to prepare some of the initial paperwork and to determine whether tax returns are even necessary.
Full text of question: Are there situations where probate is not necessary? For example, my grandmother was in a nursing home and died with some money in an account. There was probably not more than a few thousand dollars. Will we have to hire a lawyer and go through probate for this?
Answer: The probate process in Louisiana is called a succession. A succession is not necessary under certain circumstance: 1) when the estate has a gross value less than $50,000; and 2) there is no real estate involved regardless of value; and 3) there was no will; and 4) a spouse and/or adult children are able to sign an affidavit as to the facts and amount of the estate. Keep in mind that all four of these conditions must exist. If all of the factors are present, then instead of a succession the heirs can submit an affidavit to the Department of Revenue. If the Department agrees with the affidavit, they stamp the affidavit which operates as a release of estate property to the heirs named in the affidavit. This is something that probably should be handled by an attorney, but the Department of Revenue does have the affidavit forms on their Website.
Full text of question: What is a title opinion, who does them and where can I find copies of them? An oil landlease agent has contacted me in reference to drilling on property that I supposedly own, stated that 3 title opinions had been done, and that I in fact do own it. I am very hesitant about signing a lease, without knowing for certain that I in fact do own this property.
Answer: A title opinion is a form of legal opinion rendered by an attorney who specializes in such matters. The crux of the title opinion is the attorney's legal opinion that title to the property is vested in certain persons whose names appear in the public records, less and except (or subject to) certain claims, leases, debts, obligations, sell-offs, etc. Typically a title opinion excludes all matters not expressly shown by the public records of the parish where the immovable is located, and all things that might impact title that would or could be shown by a competent boundary and/or encroachment survey, a wetlands survey, and an environmental impact assessment. Also excluded are such things as zoning classifications, flood classifications, mineral valuations, and current appraisal (FMV) information. Supporting documents to a title opinion typically include: (1) a mortgage certificate from the clerk of court, (2) tax certificates from the sheriff going back at least 3 years, and (3) an abstract of title consisting of all recorded documents affecting title to the property in any way going back at least 55 years. Full title opinions tend to be expensive, given the amount of time and professional liability at stake. They are typically rendered at the request of a lending bank and are property of the party paying for them.