Ryan Brunn: It's Only Just Begun

This week's indictment of Ryan Brunn is just the beginning of the quest for justice for Jorelys Rivera.The 13-count indictment gives the public a sickening glimpse of the last minutes of this 7-year-old Canton Elementary student, yet authorities are still tight-lipped about the evidence that ties the 20-year-old maintenance worker to the crime.In order to indict the case, District Attorney Garry Moss presented evidence to convince the 23-member Grand Jury that there was probable cause, or reason to believe, that Brunn committed the crimes alleged.As the weeks progress, prosecutors and law enforcement will continue to prepare their case for arraignment and trial while Brunn and his lawyers look at every aspect of this case to challenge the allegations of the government.In high profile cases, especially those that may involve the death penalty, both prosecutors and defense lawyers will work vigilantly to make sure that due process guaranteed by the United States Constitution is flawlessly followed.While many would prefer swift justice be meted out, the process ensures the guarantee of justice for all. It is often said, "The wheels of justice grind slow, but they grind fine."While justice will move forward, it will come with a substantial cost. Prosecuting and defending such a high profile murder case will come at a high cost to the taxpayers of Cherokee County and the state of Georgia. Yet that cost will pale compared to the price that the family of Jorelys Rivera pays as they are forced to relive the gruesome tragedy already visited upon them.

 

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Criminal Justice Reform: A Challenge for the 2012 Legislative Session

Each year, criminal justice is a serious concern for the Georgia Legislature.  Fighting crime is always an important platform for lawmakers, however with costs increasing and budgets tightening, changes need to be made to the $1 billion a year corrections system. While costs of corrections are increasing, many question whether or not business as usual is effective.

House Bill 265 from the 2011 session of the General Assembly created the Special Council for Criminal Justice Reform for Georgians. The Council, made up of appointees from the Governor, Lieutenant Governor, Speaker of the House and the Chief Justice of the Supreme Court of Georgia, was established to address the spiraling costs of crime and punishment. With help from the Pew Charitable Trusts, they were tasked to identify the current problems and make recommendations on how to best use the state resources. The Council made its report to the legislature on Nov. 1, 2011.

The Council found that prison population in the past two decades has doubled to nearly 56,000 inmates, placing 1 in every 70 adult Georgians behind bars. Projections show that by 2016, that inmate population will grow to 60,000.

Georgia’s prisons are already operating at 107 percent capacity. Much of this space is presently being taken by non-violent offenders. Yet this rising prison population is not deterring crime as recidivism—offenders returning to the community to commit new crime—remains unchanged.

Similarly, the Council found the state’s community based corrections systems are stretched to the point of becoming ineffective. As of 2010, there were 156,000 probationers and 22,000 parolees supervised in Georgia. Those charged with supervising these offenders are without the tools to rehabilitate as the services and programs that the officers refer offenders—particularly substance abuse and mental heath services—are insufficient and in some cases non-existent.

Overall, the Council found that business as usual in the criminal justice system in Georgia is going to break Georgians and needs to become more effective in preventing recidivism. In its November 2011 report, the Council made a three part recommendation that called for improving public safety and holding offenders accountable; focusing expensive prison beds on serious offenders; and examining the priorities of reinvestment of funds in the criminal justice system.

The overall plan outlined in the report calls on the system to strengthen community based corrections (probation and parole; allowing for increased supervision; and more resources for rehabilitation). The Council also saw a great deal of benefit in “accountability courts” that use a carrot and stick approach of intensive court supervision over a period of rehabilitation.

Offenders in these accountability court programs see a judge routinely and interact with a panel of counselors, probation officers and drug testing personnel on a daily basis. Offenders that are making progress are rewarded while offenders that slip spend short periods in jail. These courts presently function in several counties as “Drug Court” and “DUI Court” and are enjoying very successful numbers in both rehabilitation and preventing recidivism at costs far less than incarceration.  Accountability courts received attention last year as Governor Deal’s son, a Hall County Superior Court judge, oversees the drug court in that county.

While strengthening community based programs offers more opportunity for rehabilitation to non-violent offenders, it frees up the expensive bed space for serious violent offenders that need to be removed from society. To effectuate such changes will require a reinvestment of the funds spent on the criminal justice system. Money will need to be focused on community based treatment for mental health and drug treatment as well as funds to establish the statewide system of accountability courts.

Now, the task of breaking the centuries old model of crime and punishment in the State of Georgia is laid at the feet of the Georgia General Assembly just in time for the 2012 session. Implementing these changes is not only going to require a reinvestment of funds but also a change in the mindset of the many people and agencies that operate the criminal justice system. While many of the players are resistant to change, it is clear that Georgia can no longer afford business as usual.

Gingrich Divorce Documents Tell New Story

By Eric A. Ballinger

Today, documents were released to the media regarding Newt Gingrich's first divorce from Jackie Battley Gingrich.  The documents seem to show that the first Mrs. Gingrich fought the grant of the divorce because her husband would not admit that the marriage was irretrievably broken.  This contradicts statements that the Gingrich campaign has made indicating that his wife sought the divorce.  

While snippets of the pleadings filed in a high profile case can make for some interesting sound bites for the media, they do not tell the entire story.  The statements made can reflect a position taken by a party at one time during the case or could just be a part of some legal wrangling by the Warner's to get a better position with the Court.  Once the entire file is made avaiable to the public, the documents can be placed in thier proper context and wil unfold the entire story of the divorce.  Of course this will not fit into a 15 second sound bite or even a newspaper article.

Divorce and the Family Business

   While every divorce case comes with its own challenges, those cases involving people who own their own business have a unique set of challenges. The challenges come in the computation of income as well as the division of the business as an asset of the marriage. In handling the small business as a issue of a divorce, there are a number of methods that experienced lawyers use and experts to employ in order to insure that their clients interests are served.

    The income of a small business owner is a difficult issue that is often fraught with a great deal of emotion. Unlike a wage earner, there is no single document or series of documents that a party can point to support income of a small business owner.  While most small business owners pay themselves a salary, there profits of the business, over and above the salary, are taxed to the owner as income as well. This can be a sore subject because many business owners plow these profits back into the business in order to build the enterprise instead of taking this money home.  Another issue of contention with the small business owner is the benefits that a owner receives.  Most owner operators will pay their vehicles, cell phones, fuel and other reasonable related expenses from the business and write them off as company expenses or shareholder disbursements to be taxed at a lower rate. The main issue with regard to income in a business is the uncertainty. 

    While most successful business do show a track record of increasing revenues, expenses and incomes, the future holds a level of uncertainty that nobody is willing to predict.  This is especially true when those predictions are being used to assess child support and alimony.  Another issue that comes into play in determining the income of a family business is taking into account how much of that income is reflective of the efforts of the entire family member and not just the efforts the spouse that is taxed on the income as the, "front-man". In a divorce, a family business will lose the efforts of a spouse who has provided a critical roll in that business. 

    This raises several questions that will need to be answered. What sort of income should be attributed to the "unpaid" spouse leaving the business, what is the cost of replacing the efforts the former spouse put into the business and what is the loss to both the profitability and the value of the business due to the loss of a spouse who is also a key employee? The answers to these questions are just as important as the income of the owner but another critical piece of information is the value of the business.

    The significance of accurately determining income can not be underestimated. While income is the most significant factor in determining child support and alimony, mere tax documents and wage documents will not give a clear picture. Under Georgia law, income is calculated by a different formula than that used by the Internal Revenue Service to calculate taxes. In many cases, the deductions allowed for the purposes of Federal taxation are not allowed in calculating child support. The income the family business generates is most important for setting support as well as detaining the value of the enterprise as well.

    Determining the value of a family owned business is critical part of the dividing the assets of a marriage that owns a business. In many cases, the business can be the largest asset of the family, even greater than the house. The opinions of the value of a family owned business will vary greatly especially between the spouses who are vying for a favorable split of the marital assets. While most family businesses are service based and the value rests in the reputation of the owner as well as the ability of the business to generate a cash stream, some family businesses do have significant assets in property, equipment and customer base that can be transferred for value. Of course this presupposes a balance between transferable value of the business versus the income the business generates for its owner.

    While the value of the business is important, there are issues that arise out of that value. Is there any personal debt of either spouse attributable to purchase or investment in the business? Is that debt secured to any other assets of the marriage, such as the house? Does either spouse have a non-marital interest in the business as either an ownership acquired prior to the marriage or through inheritance? The answers to these questions are critical in insuring a good and equitable division of the business. 

    The issues raised here are the same issues that a judge will need the answers to in order to render the most accurate decision with regards to all of the major issues, child support, property division and alimony in a divorce where the is a small business. Yet, despite this need for financial details, many people choose to proceed with this complicated type of divorce on their own and try to answer these questions for the court based on emotion, opinion and biased speculation. Evidence of this caliber is not very helpful to a judge making these complex decisions and the court will choose err against the side that has the most access to the information it needs. To best present your position regarding a family business, it takes a qualified team.

    First, you need to have a lawyer who is experienced in business matters as well as family law. It is not recommended that the corporate attorney handle the divorce. In fact the corporate attorney may have a conflict of interest in representing both the business and one of the spouses. The best lawyer to handle the divorce needs to have some corporate experience, family law experience and experience handling divorces involving family owned businesses. Second, the team needs a forensic accountant who is experienced in business valuation.

    A forensic accountant can not only help to present the financial information the court needs to best set an accurate income, the accountant can run projections to establish an income for the non-compensated spouse and project the costs involved in replacing the productivity of losing that key employee. A forensic accountant can best place a value on the business both as of the date of the divorce as well as at the time of the marriage. Most importantly, a forensic accountant can accomplish this using Generally Accepted Accounting Principles (GAAP) that will be more credible with the court than the opinion of either party.

    In the event a family that owns a small business is going through a divorce, it is necessary to have the right team to represent the interests of each party. These cases present complexities over and above the divorce for a wage earner. It is important to pay special attention to the needs that this sort of case presents and have a team that can deal with these needs in addition to the other issues that the divorce case presents. This means having and experienced lawyer and a forensic accountant on the team.

Military Legal Assistance Program: The Bar Helping Heroes

On Veterans Day we take pause to remember those who have served and those who serve our country and defend our freedom. The State Bar of Georgia remembers our veterans every day through the Military Legal Assistance Program. Was created in 2009 out of the research and efforts of a committee of volunteers committed to help service members with legal issues reach out to qualified lawyers who can help them, in many cases on a pro-bono or reduced fee basis. Since that time, the program has gown to a cadre of lawyers throughout the State who stand ready to help out when called on.

Lawyers from the Military Legal Assistance Program handle hundreds of referrals in the areas of family law, debt relief, landlord tenant, employment law, disability and Veteran's benefits claims. These lawyers are located all over the State of Georgia and have a wide variety of practice concentrations. Many of the volunteer lawyers have prior military service or a loved one who is serving. Still many more are just willing to help serve our heroes. It is important that we all support our heroes who have committed and even laid down their lives to give us the freedom we so richly enjoy. Remember today that freedom is not free and we all need to help share the cost.

If you know of a service member or a veteran who has a need for legal services, please contact the Norman Zoller Military Legal Assistance Program Coordinator at normanz@gabar.org

Retirement Accounts and Divorce: Protecting Your Rights with a Qualified Domestic Relations Order

For most families, their retirement accounts are their largest asset. While Wall Street is showing signs of recovery, the housing market still suffers from losses. So, while most people are upside down in their house, their retirement accounts are increasing in value. For families going through a divorce, retirement assets can be the most sought after property of the marriage. Protecting this asset is critical.

Retirement accounts, such as 401(k)s are comprised of pre-tax dollars and are titled only in the name of the employee who has built the retirement account. What this means is that there are substantial penalties for removing these funds before reaching the age of fifty nine and a half. On the other hand, Georgia law provides that retirement accounts are subject to division in a divorce. Federal law recognizes that retirement accounts can be divided in a divorce and has created special provisions that allow for the division of the retirement accounts without incurring penalties.

In general, Federal Law provides that a retirement account may be divided in a divorce by a Qualified Domestic Relations Order, or QDRO for short, and avoid the tax penalties. A QDRO works by allowing the retirement plan administration to roll out of the employees retirement account and set up a separate account for the spouse. The retirement plan participant does not incur any tax penalties and the spouse has a retirement account of their own which they can roll over to a retirement vehicle of their choosing. If the spouse elects to take the money out of the retirement account, the spouse incurs the tax penalty.

A QDRO is a separate order from the actual divorce decree and is drawn so exacting specifications that identify the dates of marriage and divorce as well as identify the plan participant and the spouse. If these orders are not drawn to the specifics required by the Internal Revenue Service and the plan provider. If the order does not meet the specifications, the plan provider may reject the order. Many plans have specific forms they require over and above the Federal regulations. It is important, in order to protect this valuable asset to consult your attorney. There are also many lawyers who specialize in drafting QDROs and have experience with the many peculiarities of each individual plan.

Drafting Your Will: The Devil is in the Details

When putting your will together, going in to detail is the only way to truly insure your intent, protect your estate and prevent a hardships for your family and chosen executor. The market place is full of options for putting together a will such as forms from office supply stores, software packages and even online solutions. Most of these forms are legally sufficient and will accomplish your basic intent, so long as that intent is very basic. Many people make the mistake of believing that there estate is too simple to warrant a will with any detail. Most people figure that their executor is knowledgeable about their intentions and can carry them out.

The problem is that once a person dies, each heir has their own idea as to what deceased would have wanted. Much of your personal property will have some sort of significance to your relatives. Many times, the death of a loved one brings out the worst in people and relatives will squabble over the division of every stick of furniture in the house and every dime of the estate. These relatives will challenge your chosen executor every step of the way. Since the estate has to satisfy the fees of the executor as well as the legal expenses. If the will merely provides that the estate is to be divided between the heirs, then the executor may end up having no choice but to sell every item and split the cash.

Here are some ways to try to litigation-proof your will:

1. Choose a good executor: Your executor needs to have good head for business. While it may hurt some feeling of your relatives for not being chosen, the executor will be called on to make some very important business decisions in disposing your estate. This person also needs to be able to stand up to all of your heirs to make sure your written intent is carried out. This person needs to have the strength and stamina to decide when to go to court or how to best settle your estate. Further, resist the temptation to name more than one person as executor. It is nearly impossible to manage by committee and the same holds true for an estate. While it might seem diplomatic to spread the power out amongst the heirs, if they cannot agree on how to handle the estate, the legal battles that will ensue between them can drain the estate before it is even divided.
   
2. Carefully select a guardian for your minor children: The person you name in your will is the person who may very well raise your children. If you do not select a guardian one may very well be decided by the State or the Courts. The person you select should be willing and capable of raising your children the way you would like to see them raised. Do you want your children to go to college, do you want them to be nurtured in the arts. Make sure your guardian is somebody who will insure your wishes. Make sure your guardian is willing to insure your children have a relationship with their entire family. The death of a parent is a huge loss for a child at any age, but the loss of the rest of the family can only serve to compound the problem.
   
3. Set up trusts: Under Georgia law, assets left to minors must be placed in a trust or a conservatorship. While the law does provide some direction as to how those assets are to be used before the child reaches the age of majority, those directions are broad and do not take into account what the minor will be able to do with the assets when they reach the age of eighteen. Most eighteen year olds are not equipped to handle large sums of money or assets. However, with a carefully drawn trust, you can direct how the money is to be used and when, if at all the money is to be disbursed. With careful drafting of the trust, you can insure that your wishes are carried out with specificity. Furthermore, trusts are not just for minors but can be set up for persons who are not wise with money or even to shelter heirs from other consequences.
   
4. Make specific bequeaths and devises: Do not trust your executor to make sure that your personal property and real property is going to get into the hands you want to see it go. The best way to insure that happens is to put it in your will. Making a list is not enough, even with the best intentioned executor. If the list is not a part of the will, then it is not legally enforceable. If the heirs end up in a dispute, the Probate Court may have no other choice but to order all of the property sold.
   

The most important thing is that a will should be a specific document that clearly spells out your desires with regard to your estate. The best way to do this is to sit down with a lawyer who is trained and experienced in not only drafting wills but has handled disputed estate cases. An experienced lawyer can point out the possibilities of problems and can lead you to draft a will that will insure your intent is carried out and prevent your heirs form having anything to dispute.