LEGAL A TO Z

Auto Accidents

See FAQ

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Business

Any activity or enterprise entered into for profit. It does not necessarily mean a company, a corporation, partnership, or that it has any such formal organization. A "business" can range from a street peddler to General Motors. It is sometimes significant to determine if an accident, visit, travel, meal or other activity was part of "business" or for pleasure or no particular purpose.

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Closing

1. The final step in the sale and purchase of real estate in which a deed of title, financing documents, title insurance policies, and remaining funds due are exchanged. Some of the final documents, including the deed and mortgage or deed of trust, are then delivered to the county recorder to be recorded. Depending on local practice, the closing is handled by a title company, escrow holder or attorney.

2. The final argument by an attorney on behalf of his/her client after all evidence has been produced for both sides. The lawyer for the plaintiff (or prosecution in a criminal case) makes the first closing argument, followed by counsel for the defendant, and then the plaintiff's attorney can respond to the defense argument. Unlike the "opening statement," which is limited to what is going to be proved, the "closing argument" may include opinions on the law, comment on the opposing party's evidence, and usually requests a judgment or verdict (jury's decision) favorable to the client.

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Debt Collection

While many collection attempts are successful in making recoveries without the necessity of a lawsuit, some claims require formal legal action. In such cases, a judgment is entered by the Court determining the legal liability of the debtor for the debt. It then allows the collector to proceed with various post-judgment remedies to collect the balance due, including requiring that the debtor furnish complete financial information, garnishment of bank accounts or levying on motor vehicles or other assets.

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Estate

1. All that one owns in real estate and other assets.

2. Commonly, all the possessions of one who has died and are subject to probate (administration supervised by the court) and distribution to heirs and beneficiaries, all the possessions which a guardian manages for a ward (young person requiring protection and administration of affairs), or assets a conservator manages for a conservatee (a person whose physical or mental lack of competence requires administration of his/her affairs).

3. An alternative term for real property interest which is used in conjunction with another defining word, like "life estate," "estate for years," or "real estate."

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Family Law

See FAQ

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Guardianship

A guardian is a person who has the legal duty and power to take care of the person and property of another who because of some disability, usually age or incompetence, is considered incapable of administering his or her own affairs. A guardianship is a legal relationship created by the court between a guardian and his ward--either a minor child or an incapacitated adult. The guardian has a legal right and duty to care for the ward. This may involve making personal decisions on his or her behalf, managing property or both. Guardianships of incapacitated adults are more typically called conservatorships.A guardian ad litem is a person appointed by a court to look after and represent an infant or child's interests in litigation.

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Homeowners’ Association

A homeowner's association is the governance function of a common interest development. This governance, created by the real estate developer, is given the authority to enforce the covenants, conditions, and restrictions and managing the common amenities of the development. Most homeowners' associations are non-profit corporations, and are subject to state statutes that govern non-profit corporations and homeowner associations.

The fastest growing form of housing in the United States today are common-interest developments, a category that includes planned-unit developments of single-family homes, condominiums, and cooperative apartments.

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Immigration

Immigrant Visa - A type of U.S. Visa issued to those who qualify for green cards. An immigrant visa enables the holder to enter the United States, take up permanent residence and receive his or her green card.

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JTROS

Joint Tenancy with Right Of Survivorship - Holding property in joint tenancy with rights of survivorship has many tax and financial implications. In addition to avoidance of probate, holding the asset in JTROS affects determination of basis, timing and value for estate tax purposes.

The manner in which real property held in joint tenancy is acquired will determine the value to be included in the estate of a decedent joint tenant and the interest that passes to the surviving joint tenant. Where a donor transfers an asset and subsequent events result in the donor becoming a joint tenant, the tracing rules of IRS section 2040 will apply, except for joint tenancy between husband and wife. Strategies exist to enhance the attainment of financial objectives through the use of qualified disclaimers in connection with joint tenancy ownership. Where a joint tenant has outstanding debts, a question may arise as to the rights of creditors to seek collection from the interest held in joint tenancy.

Joint tenancy with rights of survivorship (JTROS) is a popular format in which to hold real property. The most marked characteristic of this type ownership is the right of survivorship. Pursuant to this right, upon the death of one of the joint tenants (JTs), the interest held by the tenant passes to the remaining joint tenants without having to undergo probate. The passing of property in this way often has a dramatic impact upon both the basis of the surviving joint tenant(s) in the property and the estate of the decedent. Determination of this impact is dependent upon the relationship of the joint tenants and the manner in which the asset was acquired.

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K = Contract

Strangely enough, the legal abbreviation for contract is the letter K.

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Landlord/ Tenant

The owner of any real estate, such as a house, apartment building or land, that is leased or rented to another person, called the tenant. The basis of the legal relationship between a landlord and tenant is grounded in both contract and property law. The tenant has a property interest in the land (historically a non-freehold estate) for a given period of time. The length of the tenancy may be for a given period of time, for an indefinite period of time, (e.g., renewable/cancelable on a month to month basis), terminable at any time by either party (at will), or at sufferance if the agreement has been terminated and the tenant refuses to leave (holds over).If the tenancy is tenancy for years or periodic the tenant has the right to possess the land, to restrict others (including the landlord) from entering upon it, and to sublease or assign the property. The landlord-tenant agreement may eliminate or limit these rights. The landlord-tenant agreement is normally embodied in a lease. The lease, though not historically or strictly a contract, may be subject to concepts embodied in contract law.

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Mediation

A dispute resolution method designed to help conflicting parties resolve their own dispute without going to court. In mediation, a neutral third party (the mediator) meets with the opposing sides to help them find a mutually satisfactory solution. Unlike a judge in her courtroom or an arbitrator conducting a binding arbitration, the mediator has no power to impose a solution. No formal rules of evidence or procedure control mediation; the mediator and the parties usually agree on their own informal ways to proceed.

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Negligence

Failure to exercise the care toward others which a reasonable or prudent person would do under the same circumstances, or taking action which such a reasonable person would not. Negligence is accidental, in that it is distinguished from "intentional torts" (assault or trespass, for example) or from crimes, but a crime can also constitute negligence, such as reckless driving.

Negligence can result in all types of accidents causing physical and/or property damage, but can also include business errors and miscalculations, such as a sloppy land survey. In making a claim for damages based on an allegation of another's negligence, the injured party (plaintiff) must prove:

a. That the party alleged to be negligent had a duty to the injured party-specifically to the one injured or to the general public,

b. That the defendant's action (or failure to act) was negligent - not what a reasonably prudent person would have done,

c. That the damages were caused ("proximately caused") by the negligence.

An added factor in the formula for determining negligence is whether the damages were "reasonably foreseeable" at the time of the alleged carelessness. If the injury is caused by something owned or controlled by the supposedly negligent party, but how the accident actually occurred is not known (like a ton of bricks falls from a construction job), negligence can be found based on the doctrine of res ipsa loquitor (Latin for "the thing speaks for itself").

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Ouster

The actual turning out or keeping excluded a party entitled to possession of any real property. Actual ouster of a tenant in common by a co-tenant in possession occurs when the possession is attended with such circumstances as to evince a claim of exclusive right and title and a denial of the right of the other tenants to participate in the profits. The acts relied upon to establish an ouster must be of an unequivocal nature, and so distinctly hostile to the rights of the other co-tenants that the intention to disseize is clear and unmistakable.Only in rare, extreme cases will the ouster by one co-tenant of other co-tenants be implied from exclusive possession and dealings with the property, such as collection of rents and improvement of the property.

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Probate

1. The process of proving a will is valid and thereafter administering the estate of a deceased person ("decedent") according to the terms of the will. The first step is to file the purported will with the clerk of the appropriate court in the county where the deceased person lived, along with a petition to have the court approve the will and appoint the executor named in the will (or if none is available, an administrator) with a declaration of a person who had signed the will as a witness. If the court determines the will is valid, the court then "admits" the will to probate.

2. A general term for the entire process of administration of estates of deceased persons ("decedents"), including those without wills, with court supervision. The means of "avoiding" probate exist, including creating trusts in which all possessions are handled by a trustee, making lifetime gifts or putting all substantial property in joint tenancy with an automatic right of survivorship in the joint owner. Even if there is a will, probate may not be necessary if the estate is small with no real estate title to be transferred or all of the estate is either jointly owned or community property. Reasons for avoiding probate are the fees set by statute and/or the court (depending on state laws) for attorneys, executors and administrators, the need to publish notices, court hearings, paperwork, the public nature of the proceedings and delays while waiting for creditors to file claims even when the deceased owed no one.

3. To prove a will in court and proceed with administration of a deceased's estate under court supervision.

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Qualified Domestic Relations Orders (QDRO)

A special kind of court order which is used to divide pension rights between divorcing spouses, or to collect alimony or child support from a pension or employee benefit plan. Even if a divorce decree or separation agreement awards a share of a former spouse's plan, a QDRO is still needed to implement that award in order for money to be received.

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Real Estate

Land, improvements and buildings thereon, including attached items and growing things. It is virtually the same as "real property," except real property includes interests which are not physical such as a right to acquire the property in the future.

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Separation Agreement

An agreement made by a divorcing couple regarding the division of property, custody and visitation of the children, alimony or child support. The agreement must be put in writing, signed by the parties and accepted by the court. The agreement may also be recited into the record at trial or included in the body of the order. It becomes part of the order of separate support and maintenance or divorce decree and does away with the necessity of having a trial on the issues covered by the agreement. A divorce agreement may also be called a marital settlement agreement or settlement agreement. Although many divorces begin with a high level of acrimony, a substantial majority are settled without the need for a judge to decide property or other issues. However, if the division of property cannot be settled, then the court must make the determination.

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Trust

An entity created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust (and often holding title on behalf of the trust). Most trusts are founded by the persons (called trustors, settlors and/or donors) who execute a written declaration of trust which establishes the trust and spells out the terms and conditions upon which it will be conducted. The declaration also names the original trustee or trustees, successor trustees or means to choose future trustees. The assets of the trust are usually given to the trust by the creators/grantees/settlors, although assets may be added by others. During the life of the trust, profits and, sometimes, a portion of the principal (called "corpus") may be distributed to the beneficiaries, and at some time in the future (such as the death of the last trustor or settlor) the remaining assets will be distributed to beneficiaries. A trust may take the place of a will and avoid probate (management of an estate with court supervision) by providing for distribution of all assets originally owned by the trustors or settlors upon their death. There are numerous types of trusts, including "revocable trusts" created to handle the trustors' assets (with the trustor acting as initial trustee), often called a "living trust" or "inter vivos trust" which only becomes irrevocable on the death of the first trustor; "irrevocable trust," which cannot be changed at any time; "charitable lead" or "remainder trust," which provides for eventual guaranteed distribution of either the income or the corpus (assets) to charity, thus gaining a substantial tax benefit. There are also court-decreed "constructive" and "resulting" trusts over property held by someone for its owner. A "testamentary trust" can be created by a will to manage assets given to beneficiaries.

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Uninsured/Underinsured Motorist

Provisions commonly found in automobile insurance policies that provides for a driver to receive damages for any injury they receive from an uninsured or uninsured negligent driver. Uninsured motorist coverage is a form of insurance that pays compensation for bodily injury that results from an accident with a driver who is legally responsible for the injuries, but has no liability coverage. Underinsured motorist coverage pays compensation for bodily injury that results from an accident with a driver who has liability insurance with limits that are lower than the injured party's underinsured motorist coverage limits.The owner of the policy pays a premium to the insurance company to include this clause. Many drivers ignore motor vehicle insurance requirements, cannot afford to purchase insurance, or carry insufficient insurance. If you have been involved in an accident with an uninsured or underinsured driver, it is important that you contact an attorney immediately so you do not waive valuable legal rights.

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Visitation Rights

Most parents agree on when and where a non-custodial parent will visit their children. Many parents choose to characterize the non-custodial parent's time with the child as "reasonable visitation" and to work out flexible visitation schedules among themselves. When parents cannot agree about visitation, the judge will set up a definite visitation schedule, taking into consideration such things as the age of the children, the visiting parent's relationship with them, the home conditions of the parent with custody and of the visiting parent, and any special problems of the children such as their physical or emotional health.

Judges feel that children are best off when they are reminded regularly that they have two parents, both of whom care about them. A judge usually will not deny or restrict a parent's right to reasonable visitation unless he finds that the visitation is bad for a child's physical, mental, moral or emotional health. In most cases, try to establish regular weekly or alternate weekend and holiday visitation, with a fair sharing of school vacations and holidays.

A non-custodial parent does not lose the right to visit children because of a failure to pay child support, and a custodial parent cannot withhold visitation because the other misses support payments. Both a refusal to allow court-ordered visitation and a failure to pay court-ordered support may result in punishment by a judge.

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Will

A written document which leaves the estate of the person who signed the will to named persons or entities (beneficiaries, legatees, divisees) including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or a portion of the estate (a testamentary trust). A will usually names a Personal Representative to manage the estate, states the authority and obligations of the Personal Representative in the management and distribution of the estate, sometimes gives funeral and/or burial instructions, nominates guardians of minor children and spells out other terms. To be valid in South Carolina, the will must be signed by the person who made it (testator), be dated (but an incorrect date will not invalidate the will) and witnessed by two people. The witnesses and testator must sign in the presence of each other and there are specific requirements as to who may serve as a witness.

A will totally in the handwriting of the testator, signed and dated (a "holographic will") but without witnesses, is valid in many states, but not in South Carolina. If the will (also called a Last Will and Testament) is still in force at the time of the death of the testator (will writer), and there are probate assets, then the will must be probated (approved by the court, managed and distributed by the Personal Representative under court supervision). If there is no Personal Representative named or the Personal Representative is dead or unable or unwilling to serve, a substitute Personal Representative will be appointed by the court. A written amendment or addition to a will is called a "codicil" and must be signed, dated and witnessed just as is a will, and must refer to the original will it amends. If there is no estate, including the situation in which the assets have all been placed in a trust, then the will need not be probated.

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eX - Spouse

If your ex-spouse has been ordered to pay either child support or maintenance and fails to do so, you can ask the court to hold your ex-spouse in contempt of court. If found to be in contempt, your ex-spouse could be imprisoned. Another available remedy is to garnish his/her wages; the disobedient ex-spouse's employer will deduct money from his/her paycheck and pay you directly.

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One Year's Separation

To prove this ground for divorce, it must be shown only that the spouses have not lived together for a minimum of one (1) year. This is South Carolina's closest ground to a "no fault" divorce. Consent, or lack of it, to live separately is not relevant for this ground. Living apart means that you must live in separate residences under different roofs.  In other words, living in separate bedrooms in the same house does NOT count toward the one year requirement.  

If you have already decided that you do not want to be married anymore, then you should act to protect yourself and your interests.  If any of the following factors apply, you should consult an experienced family law attorney to discuss whether you will benefit from obtaining a legal separation:

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Zoning

Zoning protects the rights of property owners while promoting the general welfare of the community. By dividing land into categories according to use, and setting regulations for these categories, a zoning ordinance can govern private land use and segregate incompatible uses. The purpose of zoning is to locate particular land uses where they are most appropriate, considering public utilities, road access, and the established development pattern. In addition to categorizing land by uses such as residential, commercial, and industrial, a zoning ordinance also specifies such details as building setback lines, the height and bulk of buildings, the size and location of open spaces, and the intensity to which the land may be developed. Zoning does not specify minimum construction standards; these are set forth in separate building codes. When a property owner wants to use land in a way that is not permitted by the zoning of his or her property, the owner must request to rezone the property to a classification which permits the desired use. A rezoning is a legislative action which is considered through a complex process.

Generally, rezonings are justifiable under one of the following three circumstances: when the requested rezoning is consistent with long range land use plans adopted by the appropriate governing body, when there was an error or oversight in the original zoning of the property, or when changes have occurred to conditions in the vicinity of the property which prevent the reasonable use of the property as currently zoned.

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