Mar 30

Ask The Lawyer By: Daniel A. Gwinn, Esq.

Dan Gwin new photoQUESTION:  How do I get a protective order? My ex-roommate is harassing me with angry voice mail messages and emails and I feel threatened.

 

ANSWER: Protective orders are used to protect an individual, family, or entity from threats, assault, domestic violence, harassment, or stalking. The protective order, if granted by the court, may set limits on the distance an individual can be from the protected party, prevent electronic or physical contact, or bar an individual from the protected person’s property. Once granted, a failure to follow a protective order means the party violating the order is subject to contempt of court proceedings and possible criminal charges.

 

The process beings by filing court forms, which are available at the courthouse. Protective orders are usually only temporary. At some point, you will have to face the other party before the judge and explain why the protective order is necessary. The judge will then decide whether the other party is a threat. To prove your case, you will most likely need supporting documentation such as copies of threatening emails or letters, pictures showing damage to property, voice mail messages, or other evidence.

If you believe you need a protective order, or if you have been served with one alleging you have engaged in threatening conduct toward someone else, you should see a lawyer to prepare for the court hearing and to safeguard your person and property.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Mar 23

Ask The Lawyer -This week’s question:

Dan Gwin new photoThis week’s question:  AS PERSONAL REPRESENTATIVE OF MY MOTHER’S ESTATE, MAY I LIVE IN MY MOTHER’S HOUSE RENT FREE AFTER SHE DIES?

 

QUESTION:  Last week we presented the duties of a personal representative of a probate estate. This week’s question comes from an appointed personal representative.

My mother died last year and I opened a probate estate as her personal representative. My mother’s last will left her house in equal shares to me and to my two brothers. I took care of my mother during her last illness and lived with her for the last two years. I have been busy cleaning out mountains of clutter in the house since I became personal representative. My brothers are objecting to my continued presence in the house, which they claim is two-thirds theirs. They want me to pay rent! Do I have to pay rent when I am the one doing the work to clean out the house and where I am the one who took care of my mother? This does not seem fair.

ANSWER: Accepting the appointment of Personal Representative of your mother’s estate does not entitle you to free rent. While you willingly cared for your mother before her death, the consideration you may have received for that care in the form of free rent from your mother is past consideration and does not survive the death of your mother.

Your brothers have correctly asserted they possess proprietary interests in your mother’s house through her last will. It is your duty to dispose and apportion the assets of your mother’s estate as stated in that will. Unless there is a provision for you to receive free rent during the administration of the estate’s assets, you are not entitled to free rent.

A Personal Representative, however, is entitled to be reasonably compensated for his or her efforts in administering the estate during the probate process. You could negotiate with your brothers and enter into a mutually agreeable arrangement about your compensation in exchange for rent or see a lawyer to help you and your brothers avoid a potential dispute over estate assets.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Feb 16

This week’s question: HOW TO CHANGE CHILD SUPPORT AFTER CHILD GRADUATES?

Dan-Gwin-new-photo-150x150This week’s question:  HOW TO CHANGE CHILD SUPPORT AFTER CHILD GRADUATES?

QUESTION: My ex-wife and I divorced a long time ago and I was paying child support for our three children.  My oldest daughter is now in college but my support amount has not dropped.  How do I get it adjusted?

ANSWER:  Most of the time when a Uniform Child Support Order is submitted, it takes

into account when there are, like in your case, three children, two children and then one child remaining.  The amount should change automatically. If that did not occur or if your Uniform Child Support Order only provided one amount, you need a court order to change the amount of child support.

There are generally three ways to obtain that court order.  The first option if the parties can agree is to enter a consent order reflecting the new amount. The second option is to request that the Friend of the Court review your case.  Friend of the Court will generally review cases every three years upon written request.  The third option is to file a motion with the court.  For option two and three, be prepared to provide recent tax forms, pay stubs, child care expenses, and insurance expenses.  An attorney can help you determine the best option for your situation and resolve the issue.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Feb 02

GWINN TAURIAINEN PLLC HOSTING ESTATE PLANNING SEMINAR

Dan-Gwin-new-photo-150x150GWINN TAURIAINEN PLLC HOSTING ESTATE PLANNING SEMINAR

Through Waterford School District Community Education

 

It’s your estate plan. Something you know you need to do – but you keep putting it off. Next Tuesday, February 10, 2015, try a new approach and put your house in order by learning the essentials of basic estate planning.  If you plan for your future, you get the peace of knowing that the assets you have worked so hard to accumulate are protected.  You will learn about wills, trusts, power of attorney, joint ownership of assets, health care directives and the probate process. Discover for yourself and your loved ones why putting your house in order is a good idea for adults of any age.

 

The lawyers of GWINN TAURIAINEN PLLC are experienced attorneys with a knack for making the topics easy to understand, as well as enjoyable.  Previous students have described this popular course as “fun, informative, and a great presentation.”

 

To register, go to http://www.waterford.k12.mi.us/pages/51207/community-education. Click on “Click here to Preview and Register for Classes” and search for “Putting Your House in Order.” The class will be held at Crary Campus, 501 N. Cass Lake Rd., Waterford Township, MI, 48328 from 6:00 p.m. until 8:30 p.m. If you have questions, call us at (248) 247-3300.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Jan 26

Ask The Lawyer By: Daniel A. Gwinn, Esq.

Dan-Gwin-new-photo-150x150This week’s question:  MY EX-HUSBAND HAS NOT PAID CHILD SUPPORT, CAN I PREVENT HIM FROM SEEING THE KIDS UNTIL HE PAYS?

 

QUESTION: My ex-husband has not paid child support for the past two months.  My family told me that I should not let him take the kids on his weekends until he pays what he owes.  Can I keep him from taking the kids for his parenting time?

 

ANSWER:  The answer is, no, you may not stop your ex-husband from exercising his parenting time with the children because of failure to pay child support.  Parenting time and support are not dependent on each other.  If you withhold parenting time, you may find yourself in trouble with the court.  The proper thing to do is to file a complaint for support enforcement or motion with Friend of the Court (or the court if you opted out of using Friend of the Court services).

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Jan 20

This week’s question: THREATENED BY THE MICHIGAN UNEMPLOYMENT AGENCY?

Dan-Gwin-new-photo-150x150QUESTION: The Michigan Unemployment Agency is coming after me! They sent me correspondence disputing my application and have demanded the return of my unemployment benefits plus assessed me a penalty. What can I do?

 

ANSWER:  Eligibility for receipt of unemployment benefits is not automatic. If the Agency determines you are ineligible to receive unemployment benefits for misconduct, for example, the Agency will demand repayment. Where the Agency has determined you intentionally misled or gave false information on your application to receive unemployment benefits, the Agency commonly assesses an additional penalty that can equal four times the amount of the money you have received.

 

The Michigan Unemployment Agency recognizes several exceptions that operate to waive the alleged overpayments and penalties. The Agency must waive restitution where the improper payments were not your fault, or where the overpayment arose because of an error made by Agency personnel. You can obtain a waiver where you can prove that the error or statement you made in your application for benefits was made in good faith and not because of intent to defraud. Incorrect information provided to the Agency by your employer can also operate as a waiver.

 

You need professional help to defend yourself against the Agency’s threats. State law allows you to protest the demand for restitution. The due date of your protest must be timely unless you can demonstrate good cause for filing it late. A good personal reason does not constitute good cause. Without a successful defense, the Agency may seize your income tax refund, garnish wages from your future or current employment, or intercept your lottery winnings. Criminal penalties may also be imposed. This serious legal matter poses significant consequences that require the assistance of a professional.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

 

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Nov 24

Ask The Lawyer by Daniel Gwinn, Esq.

This week’s question:  I AM BEING SEXUALLY HARASSED AT WORK, WHAT SHOULD I DO?

 

QUESTION: My boss constantly makes sexual comments and jokes to me and it makes me really uncomfortable.  She can be pretty vindictive, so I am afraid to do anything because I need my job.  What should I do?

 

ANSWER:  Michigan’s Elliott Larsen Civil Rights Act, MCL 37.2101 et seq., and Title VII of the Civil Rights Act of 1964 both prohibit discrimination based on sex. It is unlawful to harass a person because of that person’s sex. Harassment can include “sexual harassment” or unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.  It can also include offensive remarks about a person’s sex. Usually, simple teasing, offhand comments, or isolated incidents that are not very serious, is not prohibited, but if the harassment is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted), it is unlawful.

 

Have you asked your boss not to make those comments to you?  Sometimes people don’t realize that their words or actions are offensive.  You should follow your employer’s internal complaint/sexual harassment procedures and report any incidents of harassment. If you are part of a union, you can contact your union representative and ask about grievance procedures under your contract. Going through these internal procedures may not be enough to stop the harassment, but if you unreasonably fail to take advantage of any preventive or corrective opportunities provided by your employer, your employer may be able to avoid legal liability for the harassment. You should also document the harassment, keep notes of what was said, when, where, and who else was present.   If the harassment continues after you have taken these steps, you may want to institute legal action and/or file complaints with the Michigan Department of Civil Rights or the Equal Employment Opportunity Commission.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

 

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Nov 17

This week’s question: WHAT IS PROBATE?

Dan-Gwin-new-photo-150x150This week’s question:  WHAT IS PROBATE?

 

QUESTION: My father, who was a widower, died recently and I was told I have to open a probate estate?  I have no idea what to do.  What is probate and where do I start?

 

ANSWER:  Probate is the process of administering a decedent’s estate. It refers to the procedure by which a decedent’s will is admitted to the court for purposes of estate administration.  A probate estate needs to be opened even if the decedent did not have a will, if he/she died owning assets solely in his or her own name.  Probate is essentially re-titling assets from the decedent to his/her heirs.

 

A probate estate is usually opened in the county were the decedent resided but can be opened where any of the decedent’s property is located.  In Michigan, there are several types of probate, depending on the size and needs of the estate.   Your first steps should be to determine what assets the decedent owned, whether the assets were jointly owned with anybody else, who the decedent’s heirs are, and whether the decedent had a will.  This will help you determine if a probate estate needs to be opened and what type fits best.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Attorney and Counselor at Law

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

Nov 17

This week’s question: AM I ENTITLED TO OVERTIME PAY?

daniel best picQUESTION: I am salaried employee. Lately, I have been required to work an extraordinary amount of additional hours. When I asked for overtime pay, my boss turned me down. Am I entitled to overtime pay?

 

ANSWER: It depends. Some salaried employees are not entitled to overtime pay, but others are. “Exempt employees” are not entitled to overtime pay, while “non-exempt employees” usually are. If you are properly classified as an exempt employee, then the most important part of your job performance should consist of supervisory and management duties. Where management or supervisory employees concurrently perform both management and non-management responsibilities, the employee may still be considered exempt if his or her primary duty consists of management responsibilities. The salary of an exempt employee must meet a certain minimum level, and must be more than minimum wage.

 

On the other hand, many employees are improperly classified as exempt and should be paid overtime for overtime hours. The federal government is currently reviewing the rules for exempt and non-exempt employees. Those employees who are MINO (“managers in name only) but whose duties primarily consists of non-management or “lead” type work, should most likely be classified as non-exempt and receive overtime time for overtime hours worked.

 

Your specific situation will depend on the nature of your job duties and how much time you actually spend performing managerial duties, not just what is listed on your job description. If you believe you are improperly classified as an exempt employee or a MINO and are entitled to overtime, a consultation with a lawyer to discuss your job duties and current salary may lead to an increase in your take-home pay.

 

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

Aug 04

Ask the Lawyer by: Daniel Gwinn A. Gwinn, Esq.-CHALLENGING RESTRICTIVE ‘NO PETS’ POLICIES

Ask the Lawyer by: Daniel Gwinn A. Gwinn, Esq.

daniel best picThis week’s question: CHALLENGING RESTRICTIVE ‘NO PETS’ POLICIES

QUESTION:  I live in a condominium complex that has a “No Pets” policy. I was fine with that when I bought my unit, but now my adult daughter needs to move in with me. My daughter is in therapy for emotional issues that surfaced after she was threatened and physically injured during an armed robbery at her place of employment. Her therapy includes a relationship with Shadow, a 114 pound mixed-breed dog. I can’t afford to move, my daughter needs a place to live, and Shadow goes with my daughter everywhere. What can I do?

ANSWER: You should request an accommodation for your daughter from the condominium Association and seek an exception to the “No Pets” policy. Federal law under the Fair Housing Amendments Act states that it is unlawful to refuse to make reasonable accommodations in rules or policies when such accommodations may be necessary to allow a person with disabilities equal opportunity to use and enjoy a dwelling.

A party requesting an accommodation to housing rules must establish she is a qualified person with a disability. Because your daughter’s psychological and emotion issues limit her ability to care for herself and to have trusting relationships with others, your daughter is a qualified individual with a disability.

The accommodation requested must be reasonable and necessary to afford the person with a disability equal opportunity to use and enjoy a dwelling. A request on behalf of your daughter for an exception to the “No Pets” rule should state that your daughter’s mental issues are alleviated, at least in part, by Shadow’s presence. Where rules and policies have the a disparate impact on equal opportunity for persons with disabilities, those rules and policies must be relaxed to level an unbalanced playing field.

Your request on behalf of your daughter is reasonable because it rebalances the playing field and does not impose a direct threat to the health, safety, or welfare of others living in your condominium complex. The accommodation you seek on behalf of your daughter is necessary to allow her to live with you in the dwelling of her choice.

A blanket “No Pets,” rule violates the Fair Housing Amendments Act when it denies persons with disabilities who rely on companion animals equal opportunity to live in the dwelling of their choice. Disability statutes are liberally construed, and require a different interpretation of strict and uniform enforcement of rules like “No Pets” because persons with disabilities are different and have different needs. Courts have invalidated “No Pets” policies where their strict enforcement would deny equal opportunity in housing. If your Association denies your request for a reasonable accommodation on behalf of your daughter, you should retain a lawyer with experience in civil rights law to assist you in obtaining a fair remedy.

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinntauriainenlaw.com.

GWINN TAURIAINEN PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile
daniel@gwinnlegal.com
www.gwinntauriainenlaw.com

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