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MAINE WEDDINGS: THE LEGAL ISSUES OF MARRIAGES

MAINE WEDDINGS:  THE LEGAL ISSUES OF MARRIAGES Like everything else, Maine weddings have certain legal requirements that engaged couples should consider as part of their planning (OK, not the most exciting or fun part of the planning!).  But knowing the legalities of getting married and the requirements for a marriage license well before the wedding will be one less thing to worry about as the big day approaches! Step 1:  Do You Need a Prenuptial Agreement? A prenuptial agreement is a contract that couples may enter into before they are married, to set forth such things as how the couple’s assets will be divided upon divorce, and how much spousal support a partner may pay as part of any future divorce settlement.  Although it may seem somewhat less than romantic to be discussing, even before the wedding, what will happen in the event of a divorce, prenuptial agreements can minimize financial risk and can simplify the divorce process in the event the marriage does not work.  Prenuptials are especially important for couples entering a marriage in unequal financial positions. Prenuptial agreements are not exclusively for divorce pre-planning; the bride and groom can also use a prenuptial agreement to establish financial plans and practices that they will observe in their future marriage, including money management, occupational goals, and budgetary policies. Generally speaking, the more assets one has to protect, the more likely it is that a prenuptial agreement should be considered.  A couple should speak with an attorney or financial professional about the need and benefits of a prenuptial agreement.  Attorney Molly Watson Shukie can assist in drafting a prenuptial agreement that conforms to the parties’ needs. Step 2:  The Marriage License A couple will need a...

DISCIPLINE OF PUBLIC EMPLOYEES AND APPLICABLE MAINE MUNICIPAL STATUTES

Discipline of Public Employees — Applicable Laws A.  State Statutes Know the applicable laws before taking certain actions to discipline public employees.  Because Maine is an employment-at-will state, people sometimes forget that some protections are available for workers in the public sector that private sector employees don’t have.  Title 30-A M.R.S.A. § 2601 states that, except as otherwise provided by law, charter, or ordinance, the municipal officers shall appoint “all municipal officials and employees required by general law, charter or ordinance[1] and may remove those officials and employees for cause, after notice and hearing.”  (Emphasis added) Certain categories of public employees also have separate protections from being fired except for cause.  See, e.g., 30-A 2601-A (Code Enforcement Officers), 30-A M.R.S.A. § 2671(1) (Police).  There is no obvious explanation for affording extra protection to these municipal employees except perhaps more effective lobbying at the state level by their employee organizations. Protection against being discharged except “for cause” means that the reason for termination must be substantial.  Except in the most egregious cases, a municipality should follow some kind of progressive discipline procedure before terminating an employee so that it is obvious that the employee in question failed to meet his or her employer’s expectations. In cases in which the employee is charged with serious misconduct, the employer may be reluctant to allow him or her to remain in the workplace while the allegations are being investigated.  In such a case, administrative leave may be appropriate so that the employee in question is, in effect, suspended with pay until the employer is ready to make a final decision and, if necessary, conduct...

STARTING YOUR OWN BUSINESS ENTITY: KNOW THE BASIC LEGAL FRAMEWORK

Starting Your Own Business Entity:  Know the Basic Legal Framework Whether to generate additional income, be one’s own boss, create flexible hours around child care, or fulfill a dream of one’s own, many folks, especially in Maine, start their own business.  As they set up these small businesses, many people fail to take advantage of available options which are open to them and which may limit their personal and tax liability. This article is intended to discuss some of those legal options available to small business owners and to briefly explain the pros and cons in adopting these various business entities. I.                   SOLE PROPRIETORSHIP Most people who begin a small individual business adopt a sole proprietorship as their business entity.  They often do this without planning to do so and simply form a sole proprietorship by default. A sole proprietorship is exactly what it says it is.  Any person who uses their labor or ideas for the purpose of generating profit, and does so under their own personal ownership, has formed a sole proprietorship.  There are no formal requirements to form a sole proprietorship, and any income which is generated by the individual’s labor will be attributed to them personally through their own social security number. While many people operate this type of business under their own name, some people also adopt a name for the business.  In legal terms this is known as a “dba”, which stands for “doing business as”.  While the business enterprise has a name separate from the individual, all of the tax and personal liability still flows directly to the individual. Some of the...

LANDLORD TENANT LAWS IN MAINE

The past year or so has brought a number of changes to the landlord tenant laws in Maine, including a round of amendments that became effective September 28, 2011.   The notable changes affecting residential leases and rental properties are summarized below. Termination of Leases Without Termination or Notice Language Leases without specific termination or notice language may now be terminated with proper notice.  This change was the result of a delayed reaction to an almost 30-year-old Law Court case, Rubin v. Josephson, 478 A.2d 665 (Me. 1984).  The Rubin case held that, when a residential lease does not contain termination language, the landlord may not use the tenancy-at-will provisions of state law to terminate the lease.  The new law overturned this decision.  Although the bill for this amendment was entitled, “An Act to Provide a Remedy to Property Owners When a Tenant Defaults on a Lease,” the law provides relief to both landlords and tenants with leases that do not contain termination provisions or notice language.  Under the new law, a landlord may terminate a lease with 7 days’ notice and appropriate for-cause grounds, even if the lease does not contain language providing for termination in such circumstances.  Similarly, a tenant may terminate a lease lacking termination language upon 7 days’ notice to the landlord in cases where the landlord has materially breached a provision of the lease.  14 M.R.S.A. §6001(1-B). Although the amendment attempts to “remedy” problems with terminating certain leases, unfortunately the statute does not automatically fix all problems with leases not containing termination provisions.   If you are going to use a lease, you may wish to have an attorney...

ETHICAL STANDARDS SHARED BY LEGAL AND HEALTH PROFESSIONALS

ETHICAL STANDARDS SHARED BY LEGAL AND HEALTH PROFESSIONALS:  OVERLAPPING CODES OF ETHICS Professional Ethics is a term that is not exclusive to attorneys.  Health providers, like legal service providers, are subject to codes of ethics, and are also more particularly influenced by laws and regulations than other professionals.  Both legal and health services providers share similar ethical duties regarding informed consent, privacy and confidentiality, and effective communication. The basis of the lawyer-client or health provider-patient relationship starts with informed consent.  Rule 1(e) of the Maine Lawyers Rules of Professional Conduct carefully defines informed consent as a person’s “agreement to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Rule 1.2 is related to Rule 1, as it requires the lawyer to “abide by a client’s decisions concerning the objectives of representation.”  Similarly, Ethics Opinion 8.08 of the American Medical Association (“AMA”) states:   “The patient’s right of self-decision can be effectively exercised only if the patient possesses enough information to enable an informed choice.  The patient should make his or her own determination about treatment.  The physician has an ethical obligation to help the patient make choices from among the therapeutic alternatives consistent with good medical practice.” The Guidelines for Ethical Conduct for the Physician Assistant Profession also deal with informed consent:  “Physician assistants have a duty to protect and foster an individual patient’s free and informed choices.  The doctrine of informed consent means that a PA provides adequate information that is comprehensible to a competent patient or patient surrogate.  At a minimum,...

CONSTRUCTION LAW IN MAINE

Construction Law in Maine:  Here are some legal issues affecting both owners and contractors involved with residential and commercial construction ventures. I.          CONTRACTS A.    Written Construction Contracts. Whether you are having work performed on your home or your business – or performing work on someone else’s home or business – it is important to have a written contract.  In some cases, a written contract is legally required, such as under Maine’s Home Construction Contracts Act, discussed below.  A written contract may not be required by law in certain commercial settings, or where the job is for less than $3,000.  Having a written contract is extremely important, however, in avoiding future disputes, which could otherwise come at the worst possible time – in the middle of an unfinished project.  All parties benefit from the process of negotiating and drafting a contract setting forth the mutual understandings and expectations.  The contract should set forth the specific terms of the project, the timeframe, the scope of the work involved, and the cost and payment obligations.  It should contain dispute resolution provisions, warranty and insurance information, and other project-specific clauses. B.    Insurance Policies.  For contractors and other construction professionals, it is a good idea to evaluate your insurance protection when entering into contracts for construction work.  Speak with your insurance agent about the scope of your coverage, generally, and any project-specific endorsements that might be required.  Be sure you understand your policy limits, exclusions, and deductibles.  Likewise, project owners will want to inquire about insurance coverage before hiring professionals to work on their property. II.        Maine Laws Protecting Consumers A.    Home Construction...

MAINE REAL ESTATE FORECLOSURES

Maine Real Estate Foreclosures Given the current state of the economy, Maine real estate foreclosure has been on the rise.  In 2010. the Maine legislature revised the residential mortgage foreclosure laws in Maine to address the foreclosure crisis facing our state and the rest of the country.  Part I of this Article summarizes the largest change – the foreclosure diversion mediation program – and the ways in which the program may reduce mortgage foreclosure sales.  Part II discusses investment opportunities that may arise when real estate foreclosures do result in public auctions of the property, and provides tips for interested bidders. I. FORECLOSURE MEDIATION SYSTEM IN MAINE COURTS Part of the 2010 law revisions is a court-facilitated real estate foreclosure mediation program in which homeowners are given the opportunity to meet with trained mediators and their bank to discuss the possibility of a loan modification or other alternative to foreclosure.  As an attorney with a foreclosure practice and a former foreclosure mediator, Attorney Buck has seen the benefits of Maine’s real estate foreclosure mediation process play out over the last year. When homeowners are served with a complaint for foreclosure of their personal residence, they are also provided standard “mediation request” forms and financial paperwork to complete and provide to the mortgage holder to consider prior to mediation.  Homeowners requesting mediation attend an informational session at the courthouse.  At the informational session, representatives from Pine Tree Legal Assistance and other community resources are available to assist homeowners in completing the financial paperwork and preparing for mediation.  Then, individual mediation sessions are held at the courthouse.  The homeowners (defendants) and the foreclosing bank’s...

BUSINESS CONTRACTS AND PROVISIONS TO IMPROVE COLLECTION OF RECEIVABLES

BUSINESS CONTRACTS AND PROVISIONS TO IMPROVE COLLECTION OF RECEIVABLES During these times of economic turmoil, small businesses need to protect themselves against the risk of non-payment of customer accounts.  The following is advice on how to proactively manage credit through business contracts and other tools: Put Your Business Deals in Writing When negotiating a financial transaction, whether it is for the provision of services, the sale of goods, or the establishment of a business partnership, it is important to put the terms of the deal in writing.  In other words, it may be wise to hire an attorney to draft the appropriate business contracts.  If the parties to a business deal come to the table beforehand to discuss the terms of the agreement (the scope of the parties’ duties, the monetary consideration, etc.), and then reduce that discussion to a written contract, it is less likely that a payment dispute or other difference of opinion will arise later on. Through such a process, the parties will have already fleshed out any misunderstandings, before committing to the deal. Also, if a dispute should subsequently arise, you have documentation as to the parties’ agreement and you will not have to rely on memory. Have Attorneys’ Fee or Late Fee Provisions in Contracts Often times, when financial distress hits, customers may only be able to pay certain of their regular monthly bills. Give your customers incentive to make your bill a priority by charging late penalties. To do this, the contract, lease, or other operative document must contain specific language that sets forth the applicable late payment penalty schedule. Likewise, to the...