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I was injured. What law governs my ability to recover damages?

Recover Damages Law Injury Law

I was injured. What law governs my ability to recover damages?

There is a large body of law that governs your right to recover for personal injuries you sustained.

First, some basic questions:

What caused the injury?

If it was an auto accident, you’ll want to visit our section on Auto Accidents.

Was it a swimming or boating accident?

A bus, train or plane accident?

A “slip and fall”?

A defective or dangerous product?

Malpractice by a doctor, dentist, lawyer, accountant or other professional?

Somebody defamed you, with a slander or libel?

Was the injury caused by someone’s intentional act? That may give rise to punitive damages.

Where did the accident occur?

The law of that state will generally govern your rights to recover.

If the accident occurred “at work” or “in the course of your employment”, then Worker’s Compensation Laws may govern.

When did the injury occur?

There are requirements for giving timely notice of your claim and/or “statutes of limitation” that require you to file suit within a certain time limit. These limits vary greatly state by state and by type of matter. If you don’t give timely notice you forever lose your ability to obtain recovery.

NEVER JUST LOOK AT THE STATUTE OF LIMITATIONS AND CONCLUDE “THE TIME HAS EXPIRED, IT’S TOO LATE”. There are many things that sometimes extend or “toll” the time limits, including a party’s lack of knowledge of the facts and circumstances, lack of manifestation of the injury, false statements or fraud, or mental incapacity or infancy.

One injury may sometimes give rise to several different rights or theories of recovery, so even if you can not recover on Grounds A you still may be able to recover on Grounds B.

Who was injured?

You — as well as your spouse — may be entitled to recover for an injury to just one of you.

The family or estate of a deceased may be entitled to recover for the person’s wrongful death.

What was the extent of the injury?

The amount of recovery you can obtain often depends on the nature of the injury, its duration (permanent or short term), your out of pocket costs (such as medical expenses, your loss of salary or wages, damage to property), the residual impacts (such as an inability to engage in sports, etc.), the pain and suffering you incurred, and the skill and experience of your lawyer.

Who was responsible for the injury?

The person you think may be responsible may be just one of many responsible. For example, if you were injured by a car that went out of control, not only the driver of the car may be responsible, but the car’s owner, the driver’s employer, the manufacturer of the car and the brakes that failed and the repair shop that didn’t adjust them properly.

Even if you think you were fully or partially responsible, you may still be able to recover — in full or in part. People often blame themselves or feel guilty when the injury was not the result of anything they did wrong.

WARNING: IF A STATE OR COUNTY OR MUNICIPALITY MAY BE LIABLE (such as when a transportation facility operated by governmental unit is responsible for the injury) THERE OFTEN ARE VERY SHORT TIME LIMITS TO GIVE NOTICE OF A CLAIM.

Can custody rights be modified?

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Custody Rights Modified Child Custody

Can custody rights be modified?

Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child (such as visitation problems, erratic behavior, relocation and impact on child-parent relationship, change in employment, residence, or marital status). Because we live in a highly mobile society, it is strongly recommended that you periodically evaluate the parenting plan. The courts recognize that many factors (such as, children’s age, relationship with both parents, the parents’ relationship, the wishes of the children) can be altered over a period following divorce and, though reluctant to change the parenting custody plan, the courts will do so if it is clearly necessary and in the best interest of the child.

Alternatively, the ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new current changes in writing; oral agreements are difficult to enforce.

What is a hardship discharge in a Chapter 13 bankruptcy?

hardship discharge consumer bankruptcy

What is a hardship discharge in a Chapter 13 bankruptcy?

There are limited circumstances under which the debtor may request the court to grant a “hardship discharge” in a Chapter 13 case even though the debtor has failed to complete plan payments. Generally, such a discharge is available only to a debtor whose failure to complete plan payments is due to circumstances beyond the debtor’s control, and through no fault of the debtor, after creditors have received at least as much as they would have received in a Chapter 7 case and when modification of the plan isn’t feasible. Injury or illness that precludes employment sufficient to fund even a modified plan may serve as the basis for a hardship discharge.

Consult with an attorney in order to determine if a hardship discharge makes sense in your individual situation different bankruptcy judges across the country apply different standards as to what “hardship” means. Your attorney will know how the bankruptcy court in your area views “hardship.”

(Reviewed 11.14.08)

Continue reading “What is a hardship discharge in a Chapter 13 bankruptcy?”

How are support payments treated under federal income tax rules?

Child support payments are typically not deductible from the income of the payer and are not included as taxable income to the supported spouse. Alimony or spousal support payments are tax deductible by the payer and taxable income to the supported spouse.

According to the Federal Internal Revenue Code, ” … any payment which the terms of the divorce or separation instrument fix (in terms of an amount of money or a part of the payment) as a sum which is payable for the support of children of the payer spouse” is not considered alimony or a separate maintenance payment. Thus, such payments are a tax neutral event (they are non-taxable to the person receiving them and non-deductible to the person making them).

Federal Income Tax Regulations state:

“A payment is fixed as payable for the support of a child of the payer spouse if the divorce or separation instrument specifically designates some sum or portion (which sum or portion may fluctuate) as payable for the support of a child of the payer spouse. A payment will be treated as fixed … if the payment is reduced (a) on the happening of a contingency relating to a child of the payer, or (b) at a time which can clearly be associated with such contingency. … For this purpose, a contingency relates to a child of the payer if it depends on any event relating to that child, regardless of whether such event is certain or likely to occur. Events that relate to a child of the payer include the following: the child’s attaining a specified age or income level, dying, marrying, leaving school, leaving the spouse’s household, or gaining employment.”

Thus, under Federal income tax law, regardless of the label that is used, most child support payments are a tax neutral event, while most support payments provided to the other (former) spouse are deductible to the payer and included in the taxable income of the supported spouse.