On the third Wednesday of every month, David McDivitt joins KILO 94.3 to answer legal questions from callers in Southern Colorado. Being a part of the morning show on KILO 94.3 is a dream come true for David, who had always aspired to be a rock star. David’s talents lead to him practicing law over practicing sick guitar rifts, but this lets him help people in need AND rock out with other music fans. Tune in from 8am-9am to hear some of the fascinating legal situations David addresses. If you have any questions of your own be sure to call in: 719-633-KILO or submit a question here.
Episode 1: January 18th, 2020
Legal Issues Covered This Week
Caller: Kevin called in because he was concerned that an estranged friend of his has been using his home address for mail. Kevin wondered if he would ever be on the hook for any debts or any other misfortunes associated with the person using his mailing address.
David: David was able to assure Kevin that he will not be responsible for any debts of the friend using the mailing address. David did advise Kevin to send a certified letter to this person letting them know that receiving their mail has become a burden, and that they should discontinue using the address.
Takeaway: It takes more than someone else using your mailing address to tie you to debts or liabilities that person is associated with. If someone else is using your address against your wishes, it is worth communicating that to them in writing.
Caller: Sara has not heard from the father of her children for an extended period of time and has no way of contacting him. Her children would like to change their last names to Sara’s since they have little to no association with their father. Sara wanted to know how she can go about legally changing the last names of her children when she can’t contact the father for consent.
David: David stated that the law favors keeping biological parents in the picture, so the best first step for Sara is to somehow contact the father. Although she hasn’t heard from him or known anything about him for quite some time, David pointed out that in today’s world it is very difficult for someone to just disappear. If all fails trying to find dad, David provided a website to access forms to file a petition with the court: courts.state.co.us
Takeaway: If you have exhausted all avenues for finding a parent who is out of the picture, try filing a petition at: courts.state.co.us
Caller: Eugene’s kid signed up for a year of Karate, but like most kids this was a short-term hobby and they didn’t want to continue taking classes. Although it was a one-year commitment, there was apparently a typo in the contract which dated the agreement valid through 2019 instead of 2020. Is this typo in the contract enough to get out of the agreement?
David: In all likelihood the typo wouldn’t be enough to walk away from the contract, because there is clear mistake on the document. David advised that with any contract dispute, especially in a case like this, the best way to tackle the issue is to plead your case with the other party face-to-face. It is likely that the Karate gym will come up with some remedy that is fair for both parties. This is certainly not the first kid to want to drop out of Karate!
Takeaway: With most contract disputes it is worth discussing your concerns with the other party face-to-face. People tend to be more reasonable when you explain your situation and try to settle the dispute in a civil manner.
Caller: Matt rented what was supposed to be a six-bedroom, two-bathroom home for his family. Three of the bedrooms were practically unusable as the basement had been used for a marijuana grow. Matt had settled on an agreement with his landlord that he would fix up the affected space with materials that would be provided by the landlord. Matt is concerned because the landlord isn’t keeping his promise on delivering the materials and due to a dispute on this issue, has threatened to evict the family.
David: One of the first things David wanted to know was whether the arrangement had been included in the lease. Matt was unsure, but did state that there were clear text message conversations that could prove that there had been an agreement. David advised that any text messages discussing the agreement around the time of signing the lease could be enough evidence to prove that the landlord had indeed agreed to the arrangement of providing building materials to fix the basement. David made the point that getting out of this lease may be the best recourse since it seems Matt is already off to a toxic start to a relationship with the landlord.
Takeaway: Always protect yourself by having paper trails of arrangements you make with your landlord. It’s best to have specific agreements to be listed in your lease, but text messages and emails can also be helpful in providing evidence that an arrangement was made.
Episode 2: February 19th, 2020
Legal Issues Covered This Week
Caller: Aaron had suspicion that his ex-wife may have forged his signature to sell a vehicle in his name. After an extremely long divorce process the vehicle had been awarded to his ex-wife, yet the vehicle was still under Aaron’s name. Aaron doesn’t know for a fact that his signature had been forged, but he was sure that he was the only name on the title, therefore drawing the conclusion that his signature must have been forged for the sale.
David: Without having access to all court documents and proceedings, David mentioned that there could have been something in that paperwork that would have allowed a transfer of title on the vehicle. If there was solid evidence that Aaron’s signature was forged, David said that the ex could be prosecuted but depending on the priorities of the DA, it could be difficult to get in motion.
Takeaway: The fact that the vehicle was intended for the ex-wife, the best course of action may be to just put the issue behind Aaron. Even if there was evidence that the signature was forged, it could be difficult to prosecute since the vehicle had been awarded to the ex.
Caller: Carlos wants to know if he can vote and have a firearm after being convicted with a felony and serving his sentence?
David: It is state by state, but Colorado seems to be more lenient to let felons vote after their sentence has been served. It is a bit different with a firearm, because if you have had a conviction of a year or more, you would be out of luck owning a handgun.
Takeaway: Carlos should register to vote as he should not have an issue in Colorado. The firearm is going to be more tricky, because without a pardon from a governor he may just be out of luck.
Caller: Chee has text messages about joint custody and financial agreements for divorce with his wife, but as soon as lawyers got involved, everything changed. Chee wants to know if he can hold his ex-wife to the agreements over text messages.
David: Until agreements are in a divorce decree, there is no done deal. The text messages could be used as evidence that the ex-wife had expressed intentions of how to handle custody and financials. Without a signed agreement it would be very hard to pushback because although she expressed the intentions, it was not a done deal.
Takeaway: The text messages may help but they won’t be a smoking gun, since the signed agreement at the end of the divorce is what ultimately dictate the terms.
Caller: Pat has nightmare neighbor who he shares a water well with and the neighbors have decided to shut off the water going to Pat’s property. Pat has been living without running water to his property for eight-years and has been hauling water in with a truck.
David: David is concerned at the fact that Pat has been dealing with this issue and that a statue of limitations may have passed, therefore limiting legal recourse for Pat. David will be giving Pat a list of names of people that may be able to help him.
Takeaway: Try and tackle legal issues right away so you don’t run into issues with a statute of limitations.
Episode 3: March 25th, 2020
Legal Issues Covered This Week
Caller: Jennifer’s landlord is trying to keep her deposit because of animals in the home. Jennifer’s husband is on disability and the dogs in the house are trained service animals, and the cat in the house has a letter as a companion animal for her son. On top of keeping her $1,200 deposit the landlord wants to charge and additional $4,000 in other damages. Jennifer is concerned that the landlord might try and sue her for the additional amount.
David: David suggests looking back at the original rental agreement to see what the language specifically says about animals. It can be difficult because of discrimination for a landlord to not allow someone with a disability with a service animal to move into the home. Another thing to keep in mind is whether the animals were brought into the home after the initial move-in and signing of agreement. As far as the additional costs they are trying to recover, David suggests getting an itemized list of everything that needs to be fixed along with the estimates to address those issues.
Takeaway: With any landlord-tenant dispute always refer to the original rental agreement. As far as the issue with additional costs for damages to the property: make sure to request an itemized list along with cost estimates for all the damages. The tenant can also get estimates on these damages to make sure the pricing the landlord is providing isn’t inflated or bias.
Caller: Steve would like to give relief to his tenants by letting them skip some rent payments due to the health crisis, but his wife thinks they need to write a contract so they aren’t taken advantage of.
David: David thinks that this landlord is wonderful for looking out for his tenants’ well-being. A contract always makes sense, and it doesn’t have to be very long or complicated. It can simply be an addendum to the existing rental agreement.
Takeaway: Any sort of agreement, especially between a landlord and tenant, should always be in writing. This way you can be sure that all terms agreed upon are documented and signed by the parties involved. In this case, it will be important to specify if the tenants will be receiving a period of free rent or if they will have to reimburse the landlord at some point.
Caller: Can I sue for someone giving me coronavirus? If you work with someone who comes into to work and get other people sick is there legal recourse?
David: This is a common concern right now. The law has dealt with this in a very similar manner with STDs. With coronavirus it will be a little different because it is a lot harder to pinpoint the source of how you were infected, as opposed to being infected with an STD. With something like the coronavirus or flu, it would be much more difficult to find the source and prove who infected you.
Takeaway: With an infectious disease like coronavirus that is so difficult to trace to the source, it will be extremely difficult to file a lawsuit against an individual and prove they were the source of infection. Now, if you get coronavirus at work from a line of work such as a medical proffesional, you may be able to file a workers’ compensation claim. Click here to learn more about coronavirus and workers’ compensation.
Episode 4: April 15th, 2020
Legal Issues Covered This Week
Caller: Greg is on disability and wants to get married but wants to make sure that he won’t lose his benefits if he gains his wife’s income. Greg also wants to make sure that the financials are set up in case something were to happen to him.
David: David says you can take a couple steps to protect your family if something happens to you. The most important, if you are a parent, is deciding who will have guardianship over your kids. Outline the plan for guardianship and be sure to confirm with the person that you have designated that they are willing to take the responsibility. Creating a will is also something you can do to ensure your family is protected and it’s relatively easy in Colorado. If you have a completely handwritten will, you do not need any witnesses.
Takeaway: Be sure to clearly outline all your wishes including guardianship of children and allocation of assets in the unfortunate event that something happens to you. Having everything clearly documented is extremely important along with making sure you properly communicate with the designated person who will be administering your estate. Although you could handwrite a valid will in the state of Colorado, David strongly suggests that you consult with an estate planning attorney to be sure you cover your bases.
Caller: Pike’s wife is diabetic and is considered high risk if she contracts COVID-19, so her doctor doesn’t want her returning to work until the pandemic is over. If her boss terminated her because she wouldn’t return to work when country opens back up, will she have legal recourse?
David: David says there is legislation put in place that could potentially protect certain groups of people. There could be an argument that certain conditions could qualify for disability due to the circumstances, but we will have to see how that transpires. There are a lot of unknowns for how we will proceed to open the state and country back up, so it will be interesting to see if certain groups could apply for disability who previously wouldn’t have qualified.
Takeaway: For the time being, Pike’s wife should communicate with her employer and let them know that she would like to return to work as soon as it is safe for her to do so. At this time, having communication and a plan with her employer might be the best option while we wait to see what other benefits she may end up qualifying for.
Caller: Caller is a CPA and thinks she got Coronavirus at work, last month. Can she force her employer to tell her who was sick, and who may have potentially infected her?
David: The employer has no obligation to divulge certain information about a possible infection in the workplace due to HIPPA laws. Information that might help pin down the exact person who was sick could compromise that employee’s privacy. The employer should tell you if you have been in contact with an employee who was infected but should not get into specifics.
Takeaway: Although your employer should let you know that you could have been exposed to the virus from another employee, they cannot give any specific information that could lead to the suspicion of any one individual. There are CDC guidelines that an employer should be taking if one of their team members has been diagnosed with COVID-19.
Caller: The caller was married last year and filled out taxes with now ex-wife (separated not yet divorced). He is worried that his stimulus check has hit the ex’s bank account. Is there anything he can do to recover that money?
David: There is small possibility of squeaking in a 2019 return, if you haven’t submitted one already. Seeing as that most stimulus checks have hit bank accounts already, this may not be a viable solution. Trying to get a court order might be tough right now, so that best course of action would be to call the ex-wife and ask for the money.
Takeaway: Although it may be a dreaded conversation, reaching out to the ex-wife is probably the best course of action right now. Although you may not be able to get a court order to recover those funds now, when things are back to normal you should be able to get one. Let the ex-wife know that you intend to recover that money, whether it is now or with a court order later.
Episode 5: May 20th, 2020
Legal Issues Covered This Week
Caller: Landlord is pursuing tenant for missed rent payments, although the landlord has already cashed the checks for rent. What legal recourse can the tenant take?
David: David is assuming that the landlord is claiming non-payment for the months you have already paid for. If that’s the case, the issue might be that the landlord is not the person cashing the check, which would be their problem, not the tenant’s. As far as the details David has heard, it seems like the tenants are compliant.
Takeaway: David suggests sending the landlord a certified letter with a record of all the payments along with proof they have been cashed. Although it sounds like the tenants have been compliant, this will help firm up their case.
Caller: Jordan was serving papers in a remote location, but the residents of the home did not answer the door. Jordan’s companion dropped his wallet at the scene which then led the residents to fabricate a story of trespassing, prompting Jordan to go to jail for seven days. Jordan was in solitary because there wasn’t a health professional around to check him into the general population. All charges end up being dropped, but Jordan wants to know if he has any recourse.
David: Because this happened about two years ago, David is a little concerned that the statute of limitations could have expired. There are federal laws for false imprisonment or for unreasonable search and seizure, but in this scenario the stronger claim might be against the person who fabricated the story causing Jordan’s arrest.
Takeaway: With all cases, the closer you get to a statute of limitations, the more difficult it will become to hire a lawyer. A lawyer must have time to gather the facts and evidence necessary to build a case for a client to file a lawsuit before the deadline. If you ever have a legal issue you want to pursue, be sure to act as quickly as possible to ensure you do not wait until it’s too late for a lawyer to get involved.
For future reference, anyone who is dealing with a similar circumstance of false imprisonment should pursue a civil rights attorney. Attorneys who specialize in this practice area will be able to evaluate the strength of your case and what possible damages there might be as a result.
Caller: If you have been hurt in a car accident, but are worried about going to the hospital because you don’t want to be possibly exposed to COVID-19, what is the threshold for making that decision?
David: If you are injured you need to consult with a medical professional immediately. Start by reaching out to your primary care, and if you need to be taken by an ambulance, please do so. Hospitals are doing their best to keep non-COVID patients safe and protected from the virus.
Takeaway: If you are hurt, it is incredibly important to get the medical attention you need. Sometimes you do need to go to the hospital, and other times you can consult with your medical providers virtually.
The most important thing is to get the appropriate treatment for the injuries you sustain. If you have an insurance claim and you do not continue with your medical treatment, it can severely affect the viability of the claim.
Caller: Mazie is wondering if there are any good resources for premade partnership agreements, as she is starting a skincare business with her friend.
David: David thinks it’s great to start the business with this type of agreement. He thinks a good first step is to figure out what type of entity they are going to have. Consulting with an accountant and an attorney who specializes in business law will be vital in making sure you have your ducks in a row. You can find a premade agreement from the internet but consulting with an attorney for at least an hour or two to try and pin down the final details would be very beneficial.
Takeaway: The first recommendation would be to hire an attorney to consult with you and make sure you set up the right business entity for your situation. If you must resort to an online template, this is still better than not having an agreement at all, but even a short consultation with an attorney afterwards is beneficial and reassuring.
Episode 6: June 18, 2020
Legal Issues Covered This Week
Caller: Can businesses who are receiving the Payroll Protection Program loan keep the majority of the loan for themselves and not use it to pay their employees?
David: Employers who qualify and receive this type of loan will be expected to use the funds to help keep their business stay afloat and keep their current employee count. Businesses are not necessarily forced to use the funds in a specific way, but if they use the money unwisely and contradictory to what it is intended for, the loan will not be forgivable. Businesses have an incentive to keep their current employees or to rehire the same amount of employees they originally had. They may qualify for loan forgiveness if they are able to follow specific guidelines.
Takeaway: It is difficult to dictate how a business may use the funds from the Payroll Protection Program. That being said, they are incentivized to use this money to pay and keep as many employees as possible. Using this loan for what it is intended is likely in the best interest in the employer’s longevity.
Caller: Alexander’s brother is living with him and accumulating junk in the backyard. The county has threatened to fine Alexander if he does not remove the junk. He is worried that if he takes action to remove the junk per the county’s direction, that he may be liable for theft of his brother’s property.
David: The best approach here will be to work out an arrangement with Alexander’s brother to relocate the junk by a certain deadline. Alexander can protect himself by giving his brother written notice that the rubbish must be hauled away by a certain date. If it is still there by the deadline, Alexander should have the junk removed to avoid a fine from the county.
Takeaway: Written notice with a practical timeline for the junk to be removed is a great way for Alexander to protect himself in the case that he must remove his brother’s junk after the given deadline. He should make it clear to his brother that action must be taken because the county considers it trash, and Alexander will suffer penalties if it remains on the property.
Caller: Jim wants to know if his employer can force him to have his temperature checked before starting work?
David: Employers are allowed conduct temperature checks with employees coming into work to ensure a safer environment. If you are uncomfortable with this maybe you could work something out with your employer to take your own temperature, then show the display.
Takeaway: Employers do have the right to take an employee’s temperature before starting their shift.