Friday, April 20, 2018

Bastards, Illegitimate Children and Non-Marital Children


For most of our English common law history, children born out of wedlock were disfavored. In feudal days, the first born male was entitled to the manor, and so succession to wealth and entitlement all depended on the children being “legitimate” children of a legitimate marriage. It has taken years for that system to be eroded by changes in the law. And the recent headlines in the newspaper now highlight how that can matter.

Michael Morgan Taylor was a bond broker who was in the World Trade Center when it collapsed, killing him along with so many others. Some of his remains were recovered and buried. At the time, he had a paternity suit pending against him by a woman who claimed that he had fathered her son. I am not sure what took so long, but I just read today that the court has ordered the remains to be DNA tested to determine the paternity issue. DNA testing has taken a lot of the guesswork out of that issue; and in fact is dispositive of the issue in most cases. And so the law has had to catch up.

Every state has its own laws on this issue, so I am going to look only at New York for this note. Like the others, New York had once disfavored illegitimate children - because it was difficult to prove a paternity case unless you had some type of admission from the father. Absent that proof, a child who claimed but could not prove paternity was left where he started, with no rights to the father’s estate.

New York decided in 2010 that it was unfair to penalize a child for the circumstances of his birth, and so changed its laws. First, it recognized that the term “illegitimate” was a bad starting point - it cast the child in a poor light by using this term. So these children in New York are now “Non-Marital Children”. Second, it recognized that DNA testing has made huge advances, and so permits a child to claim paternity in one of two ways: either by “clear and convincing evidence” of kinship (which DNA testing can furnish) or evidence that the father held them out as his own child through “open and notorious” means.

So, the putative son of Michael Morgan Taylor has been given the right to exhume the remains of Taylor to do DNA testing. As gruesome as that sounds, it is the right result. No matter how horrific his death, if he is survived by a son, then the son should be entitled to the rights granted to a son.

If Taylor died with a will in place that named specific people but not others, then his will would likely be honored; and so the non-marital child would likely not inherit under the will. But if Taylor, 42 years old and not expecting death, died without a will, then the laws of intestacy generally provide for either all or a large share of the estate to go to the surviving children of the deceased (depending upon whether a spouse survives or not). In that case, proving paternity leads to the right result.

The son’s mother has been criticized for being a gold-digger, but in addition to her specific memories of her relationship with Taylor, which in the past would probably not be enough to prove the case, she may have science on her side. If the DNA test proves paternity, then the son is likely entitled to his share of his father’s estate. He is no longer a bastard, or illegitimate; he is the much improved 21st century version, the non-marital child. While I don’t care much for wholesale revisions of language done in the name of political correctness, this change corrects an historical injustice done to children whose only sin was being born to the wrong people at the wrong time. It will be interesting to see how the rest of the case plays out.

Wednesday, January 3, 2018

Reminder: Check your credit report



Here is an easy new year's resolution to keep:  check your credit report to help keep your credit in good repair.  Like checking your car's oil or tire pressure, or the batteries in your home smoke alarms, or your heart rate and blood pressure, there are some simple life hacks that you should do to be pro-active in life rather than letting it rise up and bite you when you don't expect it.  Checking your credit reports is easy, and free, and if you play your cards right, you can do this three times a year and be better off for it. 

What is a credit report?  It is a record, compiled through both publicly available records and voluntary reporting by lenders and credit card companies of how you are handling your credit card and loan payments.  Why is that important?  It provides a history of your credit use to enable other lenders to decide whether they are going to give you a new car loan, a new credit card, a new home improvement or mortgage loan.  If you show a history of late payments, they are going to be less interested in loaning money to you.  And with reason.  When you have bad credit history, you are likely a bad credit risk.  You would not continue to lend money to a friend or family member who you know is slow to pay you back, who always has to be reminded of it, who always has an excuse for late payments.  The community of lenders feel the same way.  When they are evaluating your loan application, they look at your credit history as part of the process. 

There are three companies that monitor your credit:  Transunion, Experian and Equifax.  You can find them at the following websites:

Each of them is required by federal law to give you one free credit report a year.  Rather than get them all at once, I spread them out so that every four months I get a new one.  I have the reminder on my calendar, and I follow through.  It takes all of 5-10 minutes.  The credit reports list personal information - your past residences, your past places of employment, your social security number; and all of the open credit accounts you may have, and past histories for each.  It shows each late payment - a good reminder of the importance of paying on time - and your current and average balances.  It is also a reminder of accounts that you may have that you thought you closed.  I am currently dealing with a client who thought a joint account with her ex-husband was closed, and is finding out the hard way that it was not - and that she may still be obligated for debts he ran up on it.  

How do they compare you to others in their data base?  There is a whole scoring system that they use to rank us according to our creditworthiness.  There is no one standardized system, but rather each credit company uses its own system - though they all look the same to those of us on the outside of the scoring system.  The most widely known score is called the FICO score - because it was developed by the Fair Isaac Corporation.  You don't necessarily need to know what goes into the score, but you want to know what your score is, and if you are interested in obtaining a loan at some point in the future, then you might want to understand where you rank, and take steps to improve on it when you can. 

Credit scores are typically not given out for free - you must pay a small fee to obtain it.  But I have noticed that several credit card companies are now offering it for free, and my Quicken program is doing that for me as well.  So be on the lookout for something that you can get for free rather than paying for it.  And then educate yourself on what you need to do to be proactive about protecting and improving on it. 

So which credit company should you start with?  Normally it does not matter, but in 2017, Equifax experienced a "Cybersecurity Incident".  Hackers got into their data base and stole personal information on up to 170 million of us.  As a result, if your personal information was potentially in the data that was stolen, then they are offering free services that they would usually charge for:  identity theft protection and credit file monitoring.  

So I recommend starting 2018 by going to their site - address given above - and doing the search to see if you were potentially victimized, and if so, then sign up for their free services.  And then get your credit report and begin to become familiar with what it says about you.  All three companies maintain a site, https://www.annualcreditreport.com/index.action, that you can use to launch into any one of your reports.  They will offer to do them all at once - don't do it - spread it out!

If you have late payments, they can stay on your report for up to 7 years.  One late payment on occasion does not disqualify you from ever receiving credit in the future.  They are looking for patterns here - and so if they see your late payments perhaps occurred in the past, when you first opened your account and did not realize the importance of paying on time, they will take that into consideration.  And checking your reports allows you to correct any errors that may have been made in reporting on your payments.  

There are sites online that give hints on what else you can do.  Here are several of those hints:

1.  Dispute the late payment if it is inaccurate.  If you can prove that you were not late, or give some other excuse - an automatic payment gone awry, a situation where they credited it to the wrong account - then your creditor should be willing to remove it.  

2. You can request a "Goodwill Adjustment" from the creditor to remove late payments - if they see that perhaps the late payments were out of character, or you can tell them a sad tale about your hospitalization, or give them some other good reason to do so.   

2. Offer your creditor to sign up for automatic payments, which they love, in return for removing late payments from your credit history.  

You would never know any of this unless you checked your credit report on a regular basis.  So this year, 2018, put 3 reminders on your calendar, for January 1, May 1, and September 1, to check your credit report.  Keep a written record of which one you checked each time, and then spend a little time looking it over to understand what they have on you - and correct anything that is wrong.  This year I had them remove an address for me that they had in Richmond, a lovely city but one that I have never lived in.  If it appears on the report, and an identity thief has items delivered to a Richmond address, the theft may go undetected for a while.  By being proactive, I guard against this as best I can.  I also had them delete an alternative social security number that they listed for me - again - not sure why it was there but after submitting the correction, the risk has been lowered.  (And for those of you who don't want to give them your social security number, be assured - they already have it.  So better to make sure that they have the correct one, and no others.  Particularly if your name is John Smith or Mary Jones.  You want to stand out from the crowd rather than be mixed up with it.)

If you truly want a happy new year, then be proactive about it.  Do the simple things that we all should regularly do in this complicated world we live in.  Check your credit report!