The Coronavirus and Contracts: What you need to know about cancelling or honoring your contract.

The Coronavirus has hit the United States with a fury. It is pretty clear that it will be headline news for the weeks to come. With all of the information on the news, people are starting to panic and toilet paper is flying off the shelves. But what happens when you have an event scheduled within the next several weeks? Maybe you’re getting married or throwing that big birthday bash but the Coronavirus is scaring your guests off- do you cancel and try to get your money back? Do you reschedule? Can you even get your money back?

The answer is: it depends on the language in the contract itself. Many contracts have clauses for acts of god that would allow you to get your money back but in the traditional legal sense the Coronavirus cannot be classified as an act of god, which is more along the lines of a hurricane or earthquake. Other contracts have clauses titled Force Majeure Provisions. Force majeure is a “clause[] excusing nonperformance due to circumstances beyond the control of the parties.” Kel Kim v. Central Mkts., 70 N.Y.2d 900, 902 (1987). So can you cancel that contract because of the coronavirus? It depends on what the clause says. I always tell my clients that they and their businesses live and die by the language in their contracts and those contracts should be reviewed and updated at least once a year.

If you want to read more about this I am linking a great article below. And always consult with your attorney!

https://www.law.com/newyorklawjournal/2020/03/09/contractual-force-majeure-provisions-and-the-spreading-coronavirus/?slreturn=20200212160929

Will v. Living Will. Do You Really Need Both?

A will and a living will are two very different legal documents. Why attorneys would call two distinct legal documents very similar names is beyond me as it creates endless confusion. I am here to clear up the confusion as you need both of these documents. A will, as many of you already know, is a legal document that outlines your final wishes for the distribution of real and personal property you accumulated during your lifetime. Everyone should have one, especially if you have kids, pets, real estate, or businesses. A will comes into play after you have passed away to guide family and friends as to your final wishes for your estate.

A living will, on the other hand, comes into play when you are unable to make medical decisions for yourself.  This can happen any time during your lifetime. It is also known as a medical directive, and the well prepared living wills also have resuscitation clauses or DNR (Do not resuscitate) clauses. This document dictates who makes your medical decisions for you when you cannot. It also provides your family and doctors with specific instructions as to what you would want to happen in different medical scenarios. Do you want doctors to resuscitate you? Would you want a feeding tube? Would you want to be placed on life support? As hard as it is to read this, it’s even harder for your family members to make these decisions for you.

Clients often ask me when they should sit down with me to execute a living will. It’s never too early to have this document prepared. My brother was only 37 when he was struck by a car walking home from work. As stubborn as he was, I prepared his with him years earlier. His living will guided the decisions that I made for him. By having a living will, you determine what you want to happen to you medically and when. As scary as it can be to sit down and think about this, it is also very empowering to know that there is a plan in place for your care when you and your family are at your most vulnerable.

Why do I need a Will?

Well before I became an attorney I would often hear that very question as my family gathered for holidays. Along with the obligatory money hungry attorney joke, the consensus was that sitting down with an attorney to write up a will was a waste of time and money. Then at 75 my grandfather was rushed unconscious to the hospital. The doctors, another money hungry profession according to the family, said it did not look good (Ironically, years later as I prepared to enter college my parents advised me of my two career options- “Lawyer or doctor? Pick one!”)

Suddenly, my grandma, who spoke very little English, looked to her three children for guidance both medically and financially. All three had very different opinions that culminated in loud conversations punctuated by colorful Portuguese phrases- cursing did not count if it was in another language, go figure!

Thankfully, my grandfather recovered and was with us for another 17 years. As soon as he recovered, he and my grandmother set an appointment with parents’ attorney and put down their wishes on paper. They picked an executor and how their estate would be divided. They also executed something known as a Living Will, or medical directive. This document, separate and apart from their Last Will and Testaments, appointed one person to make medical decisions for them when they were unable  to.

Though I was quite young at the time, I remember sitting in the attorney’s office, thinking how important all of it was. I remember feeling proud that I was allowed to be there. Most of all, I was happy that my grandparents, despite superstitions, were doing the right thing for the family. Now, sitting on the other side of the desk, as an attorney, I am still surprised at how many people do not have wills- even some of my own friends (I know you are reading this) have not set aside the time to have their wills executed.

So why do you need a will? A will lets you decide how your estate will be distributed. Whether you have a lot or a little, with a will you get to decide who will be in charge of distributing your property, paying your debts and who gets what and when. You provide your family with a concrete plan honoring your final wishes. We would all like to think that at times of loss families would come together instead of fighting over who gets the antique pocket watch. Unfortunately, speaking from personal experience, if wills do not spell out bequests, things can get ugly fast.  

If you have children, pets, property, or a business, you need a will! Besides avoiding a lengthy probate process, complex litigation, or custody proceedings, a will sets down your wishes for the care of your children and pets and distribution of property, so the transition for your loved ones is easier. There is a peace of mind that comes with knowing you have a plan in place.

A good estate attorney can also help you minimize estate taxes through a detailed estate plan. Through the use of various types of trusts, and other nifty estate planning tools, you can save your family from the pains of handing over a chunk of your estate in taxes. Linda McCartney, the late wife of legend Paul McCartney, executed one of the most brilliant estate plans in history. Though her estate was substantial, millions and millions, it paid virtually nothing in taxes. The anxiety that you may feel now in executing your will is minor, compared to the far reaching benefits for you and your family.

LITIGATION OR MEDIATION: WHAT’S YOUR DIVORCE STYLE?

By Lorraine M. Medeiros, Esq.

Once upon an era, Bob Dylan ominously belted “Times they are a changing.” That was never truer of the law then it is today.  The law is changing my friends and those that refuse to change with it will go the way of the dinosaur. Within the last decade family law in particular began a much needed evolution, giving clients a chance to take control of their divorce process. Now, clients can opt out of the litigation track and hash out their divorce in the privacy of their chosen mediator’s office. Even the New Jersey Courts recognize the value mediation offers to those thinking about divorce. Prior to the filing of a divorce complaint in New Jersey, attorneys must inform their clients of the mediation option. Both attorney and client must submit a certification to the Court attesting that the mediation option was discussed. Still, many attorneys paint mediation negatively, forcing clients to believe litigation is the only way. So with the dawning of mediation versus litigation in the context of divorce, the question for clients is what’s your divorce style?

The question may seem simple but the answer is anything but simple. Let’s take a brief look at both processes to examine the pros and cons of each to help you decide what is right for you. Litigation is an adversarial process- it’s just the way divorce courts are set up. Plaintiff, defendant, Judge, and ordinarily two attorneys engage in a process of examining then dividing of assets, debts, and time with the children. If an agreement cannot be reached the parties head off to present their cases to the Judge resulting in hefty legal fees on both sides and resentment. Its husband versus wife and vice versa in a tug of war for marital property and sadly, in many cases, for the children.

My office handles many cases where the only issue before the Court is child custody and visitation. These cases never end well. Even if you “win,” the kids end up losing. Kids these days are more keenly aware of what goes on during their parents’ divorce and in the most zealously litigated divorces many kids blame themselves for the parents’ anger towards one another. However, the adversarial system evens the playing field for cases involving domestic violence, extreme cruelty, sexual abuse, and power imbalances between couples. The system regulates the divorce process for these clients and creates a type of stability, in my opinion, for them that mediation cannot.

Mediation, on the other hand, puts each client in the driver’s seat of their divorce. The buzz word here is: self-determination. Self-determination at its heart is a theory of motivation. Basically, we as human beings will choose a path that is intrinsically healthy and effective. In mediation, your mediator, who represents neither party, guides both parties along to jointly resolving the asset, debt, and custody questions in divorce. The parties work hands on in examining their issues and come to resolutions together- the parties accomplish something together and walk away feeling empowered. It’s not a therapy session but it is not a courtroom either. What mediation does offer is a safe, comfortable environment for two people to privately settle one of the most difficult times of their life on their own terms. The parties do not face the filing deadlines they would in the court and they can be as creative as they feel comfortable. Did I forget to mention that it is also much cheaper than litigation?

Mediation sounds pretty amazing, right? I am not only a proponent of mediation, I am a divorce mediator but I admit it’s not for everyone. Mediation involves work being done by the parties, as opposed to their attorneys in litigation, outside of their mediation sessions and cooperation with each other and the mediator. It involves compromise and being able to get past emotions to focus on the future. Not everyone is ready to let go of the past, or the pain, or is willing to compromise. Mediation should never be used as a vehicle to embarrass or harass anyone but that is the motivation for some. The key is to find an excellent divorce mediator that you feel comfortable with.  

Each process comes along with its own unique set of pros and cons, which were briefly touched upon here. When facing divorce it’s important to think about is best for you and your family. Everyone has their own unique set of facts and deciding the litigation versus mediation question involves thoughtful consideration. So when considering your divorce style be informed of your options and remember no two divorces are like, so do what is best for you!