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Friday, December 6, 2019

What Do I Do If The Other Parent Interferes With My Custody?

You've made it through your custody battle and finally have an order from the court. This should mean the end of conflict with the other parent, right? For many parents, unfortunately, the answer is no. Interference with the other party's custodial rights frequently occurs and can perpetuate the fight far beyond the courtroom.  

What is custodial interference?

Custodial interference can occur in a number of different ways. Sometimes it involves improperly affecting the parental relationship, such as denigrating the other parent in the child's presence.  Other times it involves direct physical interference with the other party's custodial or visitation rights. This includes, for example, refusing to return the child after a weekend visit. In less extreme situations, the other parent will return the child but is consistently late in doing so. Still other cases concern communications between parents and their children; for example, a father may try to call his son when he is with the mother, but the mother refuses to let the child answer the phone. Anything that takes away from one parent's time or relationship with his or her child may be considered interference.


Read more . . .


Friday, November 29, 2019

Why You Should Give Your Spouse Power Of Attorney

Married couples will often have legal estate documents prepared together.  Such documents may include a will, leaving all property to the surviving spouse and/or the couple’s children, and a heath care proxy (sometimes known as a living will) to direct the spouse how to handle medical issues if one spouse becomes incapacitated.   However, another estate document may be beneficial for spouses -- a durable power of attorney.  

What is a durable power of attorney?

A durable power of attorney (POA) is a power of attorney given in the event of disability (whether mental or physical) by one spouse and directs the other spouse how to handle certain business or monetary activities detailed in the agreement.  Some instances of disability could include mental illness, physical illness, advanced age, drug use, alcoholism, confinement or disappearance.  

While state law may grant spouses certain rights to act for the other spouse, some activities may or may not be covered.  A power of attorney also helps spouses who may have separate ownership of property by giving the spouse the right to act on behalf of the incapacitated spouse. 

Some examples of business decisions in real estate matters where the well spouse is not a co-owner (perhaps because the real estate was a premarital asset or for other tax reasons) and can act for the incapacitated spouse are:

  • If the incapacitated spouse owns rental property, the other spouse can collect rent
  • To pay real estate taxes for properties that may not in both spouses ownership
  • To handle issues related to any mortgages
  • To take out property insurance

Some other general business related functions a durable power of attorney can include: 

  • To sue on the collect of a debt
  • To file for bankruptcy
  • To write checks and do banking transactions
  • To sell stock or other securities
  • To file tax returns
  • To manage retirement accounts
  • To borrow money
  • To make loans
  • To make charitable donations
  • To hire attorneys, accountants or other professionals

In the event state law did not allow a spouse to do any of the functions described above for its incapacitated spouse, a durable power of attorney signed by the incapacitated spouse before the disability (and notarized for validity) can come in handy in a family emergency. 


Friday, November 8, 2019

Why Does a Tenant Need to List "Additional Insureds" on its Insurance Policy for Leased Property?

When a landlord and tenant enter into a commercial lease for a retail store or office space, the lease will likely contain a long insurance provision as well as an indemnity provision.  An indemnity is a promise whereby one party promises to indemnify (or compensate) the other against some anticipated loss.  

The commercial lease insurance provision will state the types of insurance the landlord must carry on the building, such as casualty insurance for damage caused by fire, hazards or terrorism and liability insurance to cover damage to property, bodily injury or death. By contrast, the tenant will be required to obtain and pay for insurance covering casualty or liability occurring within the leased premises and coverage for the certain events that occur in common areas of the leased building, especially if due to the tenant’s negligence.  


Read more . . .


Friday, November 1, 2019

What is the Home Study Requirement in an Adoption Proceeding?

Most adoptions require a home study, the goal of which is to make sure the prospective adoptive parents are ready to take on the responsibilities of caring for a child. The best way to prepare for a home study is to seek the advice and guidance of a family law attorney. In the meantime, this article is a brief discussion of how a home study is conducted.

Home Study 101

All types of adoptions require a home study, however, one is not required for stepparent adoption in some jurisdictions. The study is similar to a background check for parents who want to adopt.  Usually a social worker will interview the prospective parents to ensure they are emotionally and financially prepared for the adoption process.

The social worker will also review a variety of records, including:


Read more . . .


Friday, October 25, 2019

Why Landlords Want Tenants to Obtain Renter's Insurance

Residential landlords will often include a provision in the lease requiring the tenant to carry renter’s insurance. Landlords do not want be sued by tenants for damage to their possessions and want tenants to look to their own coverage. Tenants often balk at an additional cost and mistakenly assume that they are covered under the landlord’s policy. This is not the case. 

In fact, the landlord’s insurance will cover repairs to or replacement of the structure from things from fire, water or storm damage. Damage to or theft of the tenant’s possessions are not covered. Tenants will often believe their possessions are not worth much, when you make an inventory (TVs, computers, clothing, books, mattress, furniture) it adds up!  

A common lease provision reads as follows:

“The Tenant shall be responsible for obtaining at Tenant’s own cost and

expense, a tenant’s insurance policy for the Tenant’s furniture, furnishings,

clothing and other personal property.  The Tenant’s personal property shall not

be the responsibility of the Landlord, and will not be insured by the Landlord. 

The Tenant’s insurance policy must also include liability coverage.  Upon

request, the Tenant shall periodically furnish Landlord with evidence of

Tenant’s insurance policy.”  

Some savvy Landlords will go further and add: 

“Tenant shall provide a copy of renter’s insurance at the time of lease signing

and at each renewal of the lease.  Tenant shall provide written notice of any

interruption of Tenant’s insurance during the Lease term.”  

This additional provision prevents a tenant from letting the renter’s insurance lapse for non-payment or alerts the landlord if the insurance carrier dropped the tenant.  A failure to provide the insurance could be a breach under the lease.  

Tenants should consider who is listed on the insurance policy,  in particularl  roommates and couples, to be sure all occupants’ possessions are covered. Some renter’s policies can extend to possessions damaged or stolen while traveling.  A Renter’s policy can also cover a hotel stay or other interim housing if a tenant must leave its rental because of damage.  

In conclusion, renter’s insurance is not as costly as one may think and it is a good investment and protection tool for both the landlord and the tenant.


Friday, October 18, 2019

Why You Need An Attorney For Your Family Law Case

It can be tempting to handle a family law case on your own. After all, you're familiar with the facts and have a personal interest in the outcome.  Aside from the stress, time, and emotions involved, there are some concrete reasons to hire a lawyer rather than try to represent yourself.

First and foremost, you need someone who knows the domestic laws relevant to your matter.  When most people think of this critical element, they think of statutes. But familiarity with the law extends to court decisions that could have a bearing on your case. You also need someone who understands rules of civil procedure and local rules of court. There are also rules of evidence you need to follow.

Understanding the discovery process is important as well. Discovery is the collective name of methods used by either side to gain relevant knowledge about the case. Included within the umbrella of discovery are things like subpoenas, requests for production, and depositions.  A lawyer will be familiar with these and other tools, along with procedural objections that can be raised.

The court system relies upon deadlines to keep cases moving. A skilled attorney will know deadlines as they pertain to pleadings, discovery, and answering subpoenas. Keeping track of deadlines is a significant part of the process, and missing one could jeopardize your case.

In any family law case, there are potentially endless parties beyond the plaintiff and defendant.  There are witnesses for either side. There may be school professionals or therapists in custody cases. Some matters require expert witnesses, especially when complex financial issues are at stake. Still others involve custodians of records such as hospitals and banks. An experienced family law attorney will know who may be called upon or contacted for information concerning your case.

Another key task for your lawyer is to manage communications. This includes correspondence with the opposing counsel or opposing party. It also involves communications with the judge, clerks, and other court personnel. Sometimes the role of an attorney is to know what to say – or what not to say. A major responsibility of your lawyer is to protect confidential knowledge and to avoid disclosing potentially damaging facts unless necessary. This plays into settlement negotiations as well; there's a time and place to reveal sensitive information.

Finally, having a skilled attorney will help maintain objectivity.  When the subject matter is one's spouse, children, or marital finances, it's easy to see the facts in the light most favorable to you.  But not maintaining objective judgment can prove damaging to your case.  Having a full view of the facts, including those that don't help your case, is vital.  

Domestic litigation matters can be difficult endeavors.  The last thing you need is to be taken advantage of by a skillful opposing counsel. If a family law case is in your future, invest the time and money in selecting a good, experienced attorney.


Monday, October 7, 2019

What Is A Joint Venture Agreement ("JV")?

There are several types of business organizations that are recognized by the law as a legal entity. This includes an individual (a natural person or individual proprietorship), corporation, partnership, limited liability partnership, joint venture or any other form of business organization. 

A joint venture is an agreement between two or more entities to combine their property and/or efforts for an undertaking and to share the profits and/or losses equally (unless otherwise specified). Each party to a joint venture agreement (a “joint venturer”) contributes to and has control over the business venture.  There must be intent by the parties to associate as joint venturers either by their actions or by a written joint venture agreement.  

A joint venture’s closest entity “cousin” would be a partnership.  The difference is that a joint venture is usually for a single limited purpose whereas a partnership is typically formed for an ongoing enterprise.  A joint venture has a duration that is specified in the agreement, or if not stated, then until the undertaking is completed or no longer possible.  A real estate example would be a joint venture to build a development.  The joint venture would end when the agreement states it ends, when the development is built or when a municipality declared it not permissible to build.

A joint venture agreement should clearly define the scope of the joint venture and what activities are permitted and prohibited.  In addition, a joint venture will have tax implications that should be considered and addressed upfront.  The parties to a joint venture may also agree to confidentiality and non-competition agreements as well.  

An important concern in forming a joint venture is potential liability to third parties.  A lawsuit brought by a third party for damages or personal injury caused by one joint venturer can be imputed on the other participants. For example, joint venturer A could be liable for the negligence of joint venturer B in the undertaking.  

In the context of a real estate transaction, a typical provision found in a commercial lease to protect the landlord and tenant from the possible imputed liability of a joint veture is:

“No Joint Venture.  This Lease shall not be construed to create a partnership, joint venture or similar relationship or arrangement between Landlord and Tenant hereunder.”

The Bottom Line

At the end of the day, a joint venture can be quite an “adventure” and parties to a joint venture agreement should consider the benefits and risks before collaborating resources with the goal of mutual gain. 


Monday, September 23, 2019

What is a Surety Bond?

A "surety bond" is a legal tool used to guarantee that a promise will be kept.  It ensures that contractual requirements will be met and work will be done according to specifications.  If they are not, the bond will cover some or all of the damages that result.

 

The "surety bond" commits three parties to a binding contract. 

 

First, there is the "principal," the contractor, business or individual purchasing the "surety bond" as a way to assure others that work will be done as agreed.

 

Second, there is the "obligee," the party seeking assurance that the "principal" will fully complete the task.  Obligees are sometimes government agencies putting out bids, or any company or institution trying to be certain that it does not suffer financial loss at the hands of a contractor.

 

Third, there is the "surety," often an insurance company, which backs the bond and makes payment to the obligee in the event that the principal fails to meet its responsibilities.

 

How Does a Surety Bond Work?

 

A contractor  (the principal) usually pays an annual premium to an insurance company (the surety) in exchange for the insurer's commitment to uphold the contractor's promise to the organization or company that hired the contractor (the obligee).  If the contractor misses a deadline or breaches some other term of a contract, the organization it contracted with can ask the insurer to cover any losses that have ensued, up to the amount of the surety bond.  If the company has a valid claim, the insurance company will make payment.  After making good on the bond, whether the maximum amount or a lesser sum, the insurer usually tries to recover the funds from the contractor.

 

When Is a Surety Bond Required?

 

There are a number of circumstances in which an individual or business may need to buy a surety bond. 

 

  • To receive contracts from the government or from some general contractors, a construction firm or other bidder may need to have a surety bond.  Varieties of surety bond can include:  "bid bonds" guaranteeing that a contractor will accept a contract if its bid is successful; "performance bonds" guaranteeing that a contractor will complete a contract according to its terms; "payment bonds," guaranteeing that a contractor will pay subcontractors and suppliers, particularly on federal projects; and "maintenance bonds," guaranteeing that a contractor will provide upkeep and repairs for a certain amount time.

 

  • A surety bond such as a "license bond" or "permit bond" is sometimes a requirement for receiving certain business licenses or permits.

 

  • A business may need a "business service bond" or "fidelity bond" to protect itself or its clients against theft or other crimes by its employees

 

  • "Judicial bonds" may be needed by parties in civil or criminal litigation to guarantee court remedies or penalties.  These can include "bail bonds."

 

  • "Fiduciary bonds" are sometimes needed by individuals working with probate courts.  These ensure that these individuals will care for the assets of others professionally and honestly.

 

If you need advice relating to surety bonds, a business law attorney can help.


Friday, September 13, 2019

When Must a Business Charge Sales Tax on Out-of-State Purchases?

A 1992 Supreme Court decision Quill Corp. v. North Dakota established the principle that an out-of-state retailer does not have to collect state sales tax if it does not have a physical location—a store, business office, or warehouse—in the state where the purchase originated.

Theoretically, the consumer placing the order in a state that has a sales tax could be responsible for paying the tax on an out-of-state order.  An out-of-state retailer can voluntarily collect sales tax and remit it to the state, but there is no legal obligation for it to do so.  Because requiring consumers to "self-report" on large numbers of small transactions is burdensome, states generally do not do it, except on very expensive out-of-state purchases.

 

Sales Taxes on Online Transactions 

The long-established principle that out-of-state stores with no in-state presence need not collect sales tax has been challenged in the Internet era.  Many brick-and-mortar businesses have complained that out-of-state online companies have an unfair advantage because they do not have to charge customers sales tax.  States have also lost billions in sales tax revenue to tax-free online orders. 

In 2008, New York enacted the so-called "Amazon Tax" forcing Amazon and similar e-tailers to collect sales tax.  New York got around the Quill requirement of a physical presence in the state because Amazon has countless affiliates and "associates" marketing products through it, and some of those are located in New York.  Other states have enacted similar laws.  Illinois, for example, passed the "Main Street Fairness Act" targeting online retailers with affiliates in Illinois.  Currently Amazon collects sales tax in 23 states.

Some online retailers, such as Overstock.com, have cancelled affiliate programs in states with an "Amazon Tax" to avoid having to collect state sales taxes.

 

Which States Have an "Amazon Tax"?

Currently 23 states have sales taxes on online retailers like Amazon:

Arizona

California

Connecticut

Florida

Georgia

Indiana

Kansas

Kentucky

Maryland

Massachusetts

Minnesota

Nevada

New Jersey

New York

North Carolina

North Dakota

Pennsylvania

Tennessee

Texas

Virginia

Washington

West Virginia

Wisconsin

South Carolina will start collecting tax in 2016.  Five states have no sales tax at all -- Alaska, Delaware, Montana, New Hampshire, and Oregon.  Others have yet to target online businesses.

 

Summary

Businesses online or off that have no physical connection to a state, other than shipping products to it, are generally shielded from having to collect sales tax by Quill.  Businesses that have a physical presence in a state may have to collect sales tax if required by state law.  Those with no physical presence but with representatives, affiliates or associates in a state may be required to collect state sales tax by laws like the Amazon Tax.  An experienced business law attorney can assist you in determining whether you are obligated to collect sales taxes.


Friday, September 6, 2019

Who Owns A Business's Customer List?

Many businesses have customer lists that they consider their own private property.  It is common, however, for sales representatives and other employees to regard customer lists as theirs too, something they can take to a new employer. Employment agreements, confidentiality agreements, non-competes, and non-solicitation agreements can all be used to eliminate confusion over whether a customer list is transferable or not. 

In the absence of clear contractual protections, however, case law and state trade secret laws may decide whether a list is the exclusive property of a business.  If the list is a "trade secret," a business owner may have an easier time protecting it and obtaining damages for its use by ex-employees and competitors. The Uniform Trade Secrets Act, that has been adopted by most states and the federal Defend Trade Secrets Act provide for penalties and remedies for the misappropriation of trade secrets.

When is a list a trade secret?

Generally, a list receives "trade secret" protection if, first, it contains information not readily ascertainable from public sources.  Merely listing customers and general contact information is usually not enough to elevate the information to trade secret status. Second, owners must usually take some measures to keep the information confidential.

What steps can a company take to ensure that a list is viewed as a trade secret?

The following are elements which, when present, can lead to a customer list being deemed a trade secret.

• The list contains unique, non-public information about each customer, such as ordering history, needs and preferences, and private phone numbers and e-mail addresses.  The more a customer list contains valuable details compiled about each customer, the less likely a court is to say that the list could have been readily assembled from public sources. 

•  The list is marked "private" or "confidential," and employees are informed that it the property of the company. 

• Electronic versions of the list are password-protected, and access is limited to certain users.

• Printed copies are kept under lock and key.

• When the list is shared with third parties, there is a confidentiality agreement.

• The owner can show that time and effort were invested in building and maintaining the list.

A recent case involving former employees of an insurance company shows how these factors can influence a court.  In that case, the customer list contained more than just customer names, birth dates and drivers' license numbers.  It also contained laboriously compiled information about the amounts and types of insurance each customer had bought, the location of insured property, the personal history of policyholders, policy termination and renewal dates, and other potentially valuable details.  The list conferred a powerful, competitive advantage and the court deemed it a "trade secret."

Meeting the criteria spelled out in that case and in the suggestions above does not guarantee that a customer list will be deemed a protected trade secret.  It could, nonetheless, increase the odds.


Friday, August 23, 2019

Pitfalls in Providing Employee References


Employees do not always depart on the best of terms. When that is the case, what are your obligations in terms of disclosure when a prospective employer contacts you to check for references? Keeping negative opinions to yourself might seem like a surefire way to stay out of court. A bad reference might lead an employee to file a lawsuit, but that does not mean he or she would be successful. Theories of liability include defamation, negligent misrepresentation and negligent referral.

Particularly risk-averse employers follow a policy of only confirming employment when someone calls for a reference. This approach does not necessarily insulate you from liability, however. In workplace violence situations, for example, you might find yourself in litigation for simply providing dates of employment for an individual when you were aware of his or her tendency toward or history of violence or other misconduct.

When providing a reference, share only factual information. Hunches, gut feelings and bad vibes are not good topics for discussion. For example, if you suspected a former employee was stealing from you, but you never had conclusive proof, it is probably advisable not to mention your suspicion. The best course of action is usually providing complete and accurate information to anyone checking a reference. Some states have passed laws providing varying degrees of immunity to employers who provide honest references about former employees.

When you are asked for a reference, you should keep track of:

  • which employees you were contacted about;
  • who contacted you;
  • the date of any conversations;
  • the method of communication (phone, email, in person); and
  • what you said, particularly if you provided anything more than confirmation of employment.

An experienced business law attorney can effectively advise you about providing employee references and other challenging issues you face in running your business.


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