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Thursday, April 16, 2015

Protect Your New Business with Preventative Legal Planning

Most Legal Issues Can Be Resolved Before They Even Arise. Here’s How.

Most people are familiar with the idea of “preventative” legal action. The term refers to anticipating legal issues and conflicts and working to prevent them, rather than solving them or “winning” them once they occur. Companies can benefit from implementing preventative legal strategies as this approach is often less expensive than litigation, mediation, arbitration, and local, state and federal fines.

By working with an attorney early on in the creation of your new business, you can build a sound foundation for your company while likely saving money down the road. The following steps can serve as a great starting point for sound legal planning:

  1. Establish a relationship with an attorney who can assist you with the legal issues your new business will face early on in the start-up process. When an attorney is familiar with your firm from the onset, he or she can more effectively anticipate and address legal challenges and provide solutions.

  2. Determine what you want, negotiate it and memorialize it in proper legal documents. Businesses encounter disagreements with vendors, landlords, employees, partners and others. To minimize the number of conflicts, it’s important to establish written contracts for all important agreements, arrangements and accommodations.

    A business law attorney can help you identify all key concerns regarding employee compensation and benefits, property usage and maintenance, relationships with suppliers and responsibility and profit sharing with partners. An attorney can ensure that, when a question, disagreement or conflict arises, your interests are written down, clearly stated and legally protected by a mutual agreement with the party in question.

  3. There are many exciting steps in starting a new business venture; selecting the type of legal entity the business will be is rarely one of them. Yet, it’s important to select a business structure early. Corporations offer numerous advantages but also require officers, boards, articles of incorporation and other formalities. Partnerships and sole proprietorships are simpler than most other business structures but open owners to potentially costly liability. Limited liability companies offer a middle ground for many, providing a liability shield and comparative simplicity. We can help you determine which business structure will work best for you by taking into account tax planning, location and other key considerations.

Even with preventative legal planning, a lawsuit may arise. If it does, it’s important to approach it from a business, not a personal standpoint. This strategy can help you make decisions that are best for your company’s future, keep your focus on the day-to-day needs of your business and avoid unnecessarily disclosing information. For legal advice and hands-on assistance during the formation and continued operation of your business, contact us for a consultation.  


Thursday, April 2, 2015

Don’t Let Your Social Networking Activities Undermine Your Divorce Negotiations

According to the American Academy of Matrimonial Lawyers, in the past five years 81% of its members have represented clients in cases involving evidence from social networking sites, such as Facebook, MySpace, Twitter, YouTube and LinkedIn. Posted pictures and comments can make the job all-too-easy for your former spouse’s attorney to attack your credibility and ensure you do not receive the relief that you are requesting from the court.

A picture is worth a thousand words. And that picture you posted of yourself, in various stages of undress, or with a marijuana cigarette in one hand and a drink in the other, speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. But the information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the ex-husband who claims he has no income, but his Facebook profile is chock-full of photos of luxury purchases or exotic vacations? What about the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help your case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex-spouse.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your ex-spouse’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see. Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record. If there is any doubt, do not post. You cannot “unring that bell!”  If you need a divorce attorney, call us for a consultation today.      
 


Thursday, March 26, 2015

Common Area Expenses in Commercial Leases

There are different types of commercial leases, such as gross leases, modified gross leases and net leases.  One variation of the net lease is a “triple net” lease, in which the tenant is liable for a net amount of property taxes, insurance and common area maintenance relating to the property they are possessing.  Most of the time, additional fees in the form of common area maintenance expenses come up in the context of a triple net lease.  Landlords ask tenants to pay these fees so that they contribute to the cost of maintaining common areas such as entranceways, walkways, parking lots and hallways, as well as services enjoyed by the tenant such as janitors, security and landscapers.  These fees are in addition to a rental payment and can be substantial depending upon the situation. 

It is essential that a business owner be informed about the terms of the lease they are entering into, especially if these terms have the potential to cost them money.  As common area expenses can be a significant cost they are often controversial and hotly negotiated.  Most of the disagreements over these terms relate to the distinction between costs for the maintenance of common areas and expenses that are primarily the landlord’s responsibility.  Generally, the test is who will benefit most from the expense, the tenant or the landlord.  For example, it can be argued that tenants should not be paying for improvements that are being done to increase the value of the property as the landlord will be the primary beneficiary of these improvements. 

When negotiating common area expenses, the business owner should inquire as to the purpose of the payments.  They should also ask whether they will be able to review what the money is being spent on at any given time.  Business owners should seek the advice of an attorney as they will be able to explain many of the options available to them.  For example, there might be an opportunity to ask for a capped or fixed rate.  Most importantly, they should be informed about their legal options in the event of a dispute.

If you are signing a commercial lease and will be responsible for common area expenses, it is in your best interest to consult with a business law or real estate attorney before signing on the dotted line. 


Thursday, March 12, 2015

4 Ways to Obtain a Green Card

A green card is a document issued to non-U.S. citizens who have been given permission to live and work in the U.S. for an indefinite time period. Immigrants can acquire a green card through a variety of ways, but the government limits the number of green cards issued each year, and those seeking permanent resident status must meet certain eligibility requirements.

Below are the four ways in which a non-U.S. citizen can become a green card holder.

  1. Through family
    • An immigrant may be eligible to get a green card if they are an immediate relative of a U.S. citizen, have a family member who falls into a preference category, or a family member who is currently a green card holder.
    • A non-U.S. citizen may also qualify for a green card if they fit into a special category, including a battered spouse or child, or a widow(er) of a U.S. citizen, among other unique circumstances.

  2. Through employment
    • Green card hopefuls may be eligible to immigrate based on employment or a job offer. For this option, employers are required to obtain a labor certification and complete other documentation.
    • Investors and entrepreneurs who seek to make an investment in a business, and therefore create U.S. jobs, may qualify.
    • An immigrant may be allowed to file for themselves through self-petition if they fall within a certain category, such as Aliens of Extraordinary Ability, or if they are granted a National Interest Waiver.
    • Specialized categories of jobs may allow immigrants to acquire a green card, such as: broadcasters, Afghan/Iraqi translators, International Organization Employees, and religious workers, among others.
  3. Through refugee or asylee status
    • If someone is admitted to the U.S. as a refugee or as a qualifying member of an asylee, they may apply for a green card one year after their entry into the U.S. Those granted asylum in the U.S. may apply one year after the grant of asylum status.
    • Refugees are allowed to remain in the U.S. indefinitely.
  4. Other ways to obtain a green card
    The majority of immigrants gain permanent legal status in the U.S. through the aforementioned means, but there are other ways to acquire a green card.
    • Diversity Immigrant Visa Program, often referred to as the "Green Card Lottery" because it draws from entry selections at random. This program allows for 50,000 visas annually.
    • K Nonimmigrant, which includes those who are affianced to a U.S. citizen and their minor children.
    • Legal Immigrations Family Equity (LIFE) Act. This provision requires the immigrant to be a beneficiary of a labor certification application and other similar official procedures.
    • Special Immigrant Juvenile Status (SIJ) Status allows abused, abandoned or neglected foreign children in the U.S to acquire a green card in order to live and work permanently in the U.S.

Thursday, March 5, 2015

Life After Bankruptcy -How to Rebuild Your Credit

If you are thinking of filing for bankruptcy, you might be deterred by the devastating effects it can have on your credit score.  It is true that filing for bankruptcy can negatively impact your credit for the ten years that it is noted on your credit report. Luckily, you are not totally helpless as you can take steps to rebuild your credit after you have received your final bankruptcy discharge.

Knowledge is power!  Meaning that in order to have control over rebuilding your credit you must be informed about the things that are affecting it.  After your bankruptcy discharge date, or when your bankruptcy is finalized, you should get copies of your credit reports.  You can request copies from all three agencies, Equifax, Experian and TransUnion, in order to have the most complete information.  You should review these reports carefully in order to identify what is negatively affecting your credit and look for any mistakes.  If you find anything that is incorrect you should contact the agency to let them know and dispute the matter if necessary.

Another step you can take to rebuild your credit is to get a new credit card.  Most likely you will not qualify for a conventional card, but you probably will not have trouble getting a secured card.  A secured card is one in which you make a deposit to collateralize your line of credit.  If you do not pay your bill, the deposit is there for the company to seize.  The amount of your deposit will determine your line of credit.  You should only make small purchases with this card and should only use a small amount of the credit line.  It is also extremely important that you make on-time payments and pay off the entire balance each month.  If you do well with a secured card, you might qualify for a retail card within a few months.  These cards should be used the same way.

It is particularly important to pay your bills on-time when you are trying to rebuild your credit after bankruptcy.  If you can pay your bills early, you should do so.  Paying on time has a huge affect on your credit score and is one of the easiest ways to re-establish good credit.  Having a cash reserve is always a good idea as it can prevent you from relying on credit cards if you ever encounter an emergency.  Call us for a consultation.

 


Thursday, February 19, 2015

How to Ask Your Partner for a Prenuptial Agreement

Discussing your desire to establish a prenuptial agreement with your future spouse has the potential to be a complete disaster, but approaching the topic with the comfort of your partner in mind can help alleviate much of the stress associated with the process of creating a premarital agreement.

A prenuptial agreement is a legal document drafted and signed before marriage that lays the groundwork for the distribution of assets should the marriage fail. Although these agreements aren't a requirement for engaged couples, many attorneys agree they are an important part of the pre-marriage process, as they provide a binding agreement that each partner must adhere to in the event of a divorce. Many are sensitive to the idea that signing an agreement of this kind means one partner thinks the marriage will fail, but prenuptial contracts are really just meant to serve as a contingency plan.

Below are three ways to make the discussion easier.

Know the basics of a prenuptial agreement.

You likely have an inkling as to how your partner will react to you bringing up the subject of a premarital agreement. Whether you think they will be neutral or get defensive at the very mention of the idea, explain that drafting the agreement as a couple gives you the ability to design it in a way that could financially protect both of you in the event that your marriage fails. Make sure your partner is aware that their feelings during this process are of the utmost importance to you. It's best to seek the guidance of an experienced family law attorney prior to discussing a prenuptial agreement with your future spouse in order to gather all the information you need to have a thorough discussion on the subject. These small preparations can help the conversation flow more smoothly between you and your partner, hopefully resulting in a relaxed and honest discussion about what you both expect from your marriage.

Don't wait until the last minute to tell your fiancé you want a premarital agreement.

Both of you should be involved in the process of drafting the prenuptial agreement. It shouldn't be one of you presenting the other with a contract at the rehearsal dinner right before the wedding. Not only are last-minute agreements on "shaky ground" legally speaking, but you're more likely to upset your partner if you expect them to read and sign this type of contract without any warning. Prenups that are signed shortly before the wedding aren't necessarily lawfully invalid, but they are much more likely to be legally argued than agreements that were signed well before a couple says "I do." In order to avoid inflicting massive pre-wedding jitters on your partner, talk about your desire to have a prenup as soon as possible following your engagement. Working together to draft the agreement provides both of you with a chance to state how you feel "work" will be divided throughout your marriage, which can make you more secure with your decision to marry than before. The prenuptial agreement takes the guesswork out of a divorce, as it determines who owns what property.

Consider working with a mediator to draft your premarital agreement.

Working with a mediator allows you, the couple, to draft a contract that combines both of your best interests. Before meeting with a mediator, couples should come up with some issues they would like to address in their prenuptial agreement. Discussing what key points you want the agreement to include beforehand ensures that you are on the same page as a couple, and it will make the meeting with the mediator more productive. In addition to providing you with unbiased advice, a mediator can offer couples guidance on the legalities involved in such contracts. This method is a smart way to guarantee each spouse equal bargaining power. As a matter of protection and precaution, each spouse may also hire their own individual attorney to review the agreement.


Thursday, February 12, 2015

Returning to the United States after Deportation

Each year, hundreds of thousands of individuals are deported from the United States. For many of these people the dream of living and working in the U.S. is far from over. Unfortunately after deportation, the path to reenter and live in the U.S. is incredibly difficult. Depending on the reason for removal and number of violations, a deported individual may have to wait several years before reentry or they may be permanently banned from ever returning to the United States.

If you or a loved one has been removed and now want to return to the U.S., it’s important that you first identify whether or not an Order of Removal was issued. This order will impact your options for reentry. In some cases, you may have been granted voluntary departure (rather than an Order of Removal) which may make the process of returning an easier one.   If you’re unsure of the type of order, you should contact an immigration attorney who can help you obtain your U.S. Citzenship and Immigration Services (USCIS) and Immigration Court Records.

If you do have an Order of Removal against you, you may not be able to re-enter the United States for a set time period ranging from 5-20 years. If a removed individual is perceived as posing a threat to national security or has been convicted of a felony, he or she may be permanently banned from the country.

If you have a new basis on which you are looking to return to the United States (e.g. you have been offered a job with an emerging tech company in Silicon Valley or a relative who can now sponsor you) during the time period that you are ineligible, you may be able to return by filing a waiver request,  Form I-212, “Permission to Reapply For Admission Into the United States After Deportation or Removal” which essentially requests that the immigration authorities consider the new situation and forgive the past removal.  Along with the form, you may be required to submit supporting documentation showing proof of sponsorship or employment, moral character and even evidence of rehabilitation (if you were arrested during your time in the United States).

Depending on the grounds for your removal, you may have to wait a certain length of time before filing the request. An immigration attorney can help you better understand your options, assist with the form and compilation of supporting documentation to ensure have the best chance of successfully reentering the United States.  Call us for a consultation.  

 


Thursday, February 5, 2015

Can My Employer Enforce a Covenant Not to Compete?

Many employers require their employees to sign agreements which contain covenants not to compete with the company.  The enforceability of these restrictive provisions varies from state-to-state and depends on a variety of factors. A former employee who violates an enforceable non-compete agreement may be ordered to cease competitive activity and pay damages to the former employer.  In other covenants, the restrictions may be deemed too restrictive and an undue restraint of trade.

A covenant not to compete is a promise by an employee that he or she will not compete with his or her employer for a specified period of time and/or within a particular geographic location. It may be contained within an employment agreement, or may be a separate contract. Agreements which prevent employees from competing with the employer while employed are enforceable in every jurisdiction. However, agreements which affect an employee’s conduct after employment termination are subject to stricter requirements regarding “reasonableness,” and are generally disallowed in some states, such as California which has enacted statutes against such agreements except in very narrow circumstances.

Even in states where such covenants are enforceable, courts generally disfavor them because they are anti-competitive. Nevertheless, such agreements will be enforced if the former employer can demonstrate the following:
 

  • The employee received consideration at the time the agreement was signed;
  • The agreement protects the employers legitimate business interest; and
  • The agreement is reasonable to protect the employer, but not unduly burdensome to the employee who has a right to make a living.

Consideration

Under the principles of contract law, all agreements must be supported by consideration in order to be enforceable. The employee signing the covenant not to compete must receive something of value in exchange for making the promise. If the agreement is signed prior to employment, the employment itself constitutes consideration. If, however, the agreement is signed after employment commences, the employee must receive something else of value in exchange for the agreement to be enforceable.

Legitimate Business Interest

Legitimate business interests can include protecting and preserving confidential information (trade secrets) and customer relationships. Most states recognize an employer’s right to prevent an employee from taking advantage of information acquired or relationships developed as a result of the employment arrangement, in order to later compete against the employer.

Reasonableness

Based on the circumstances, a covenant must be reasonably necessary. If the covenant is overly broad, or unduly burdensome on the employee, the court may refuse to enforce the agreement. Therefore, the covenant must be reasonable in both duration and scope. If a covenant is overly broad, the court may narrow its scope or duration and enforce it accordingly. But if a covenant is so broad that is clearly was designed to prevent lawful competition, as opposed to protecting legitimate business interests, the court may strike down the agreement in its entirety.

To enforce a covenant not to compete, the employer can file a court action seeking an injunction against the employee’s continued violations of the agreement. The company can also seek monetary damages to cover losses resulting from the employee’s breach.  Call us for a consultation.


Thursday, January 22, 2015

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

  • Establish clear priorities.
  • Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
  • Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
  • Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
  • If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
  • If you spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
  • If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.  Call us now for a consultation.
 


Thursday, January 15, 2015

Are Tax Debts Dischargeable in Bankruptcy?

If you’ve ever owed money to the Internal Revenue Service (IRS) or state taxing authorities, you know that interest and penalties can add up in a hurry, racking up a tremendous tax debt. Carrying tax debt means also carrying the burdens associated with it:  Tax refunds will be seized until the debt is repaid, and liens will be recorded against you, clouding title to any property you own. If you are behind in payments, your bank account can be levied. The government always gets its money. Or does it?

If your tax debt is relatively old and certain other conditions are met, your tax debts can be discharged in a Chapter 7 bankruptcy. To discharge a tax debt, the following must exist:

  • You filed a tax return for the year (or years) in question. The return must not have been fraudulent.
  • The debt you want discharged must be for a tax return that you filed at least two years before you filed your bankruptcy petition. A “Substitute for Return,” completed by the IRS on your behalf which you did not sign or consent to does not qualify.
  • The tax return for the debt you want to discharge must have been due at least three years prior to the filing of your bankruptcy petition.
  • The IRS must not have assessed your liability for the taxes within the 240 days before you filed your bankruptcy petition.
  • You have not willfully evaded paying your taxes.

The first step in determining whether your tax debts are dischargeable is obtaining your account transcript from the IRS or your state taxing authority. This transcript will show you the dates returns were filed, or obligations became due. If all five of the above conditions are met, your tax debt is likely to be discharged.

Penalties that were imposed on a dischargeable tax debt are also dischargeable, which is important given the onerous sums typically imposed. If your underlying tax debt is not dischargeable, some courts may allow for the discharge of the penalties.

Note that if you incurred other debts in order to pay off non-dischargeable tax debts, those debts are not dischargeable. For example, if you made payments using your credit card to pay off non-dischargeable tax obligations, you will not be permitted to discharge that credit card debt in a Chapter 7 bankruptcy.

If your tax debts are successfully discharged, any liens placed on your property could remain in effect. This means that the IRS or state government may not seize your bank account or wages to collect the debt, but if you want to sell your property, you will have to pay the debt in order to clear title to the property.

Tax debts that cannot be discharged in a Chapter 7 bankruptcy may be eligible for repayment without penalties or interest in a Chapter 13 bankruptcy proceeding. Bankruptcy is not a one-size-fits-all approach. An experienced bankruptcy attorney can help you determine whether your outstanding tax bills are dischargeable and whether you should file under Chapter 7 or Chapter 13 of the bankruptcy code.  Call us for a consultation.  


Thursday, January 8, 2015

Master Calendar Hearings

The first stage in the removal (deportation) of a foreign national is a Notice to Appear (NTA) at a Master Calendar Hearing.  The purpose of the hearing is not to reach a final decision on removal, but to obtain basic information about the case and create a schedule for it to proceed.  It also is an opportunity for the court to outline all of the legal rights available to the foreign national, including the right to answer charges, present evidence, examine witnesses and, if the respondent lacks counsel, make use of any free or low-cost legal service providers who may be available.

The Notice to Appear contains the date, time and location of the hearing, usually at least ten days later.  A foreign national (the "respondent") who receives a notice must attend in person, with or without an attorney.  Failure to attend, or even showing up late, can result in denial of an application and deportation "in absentia."  The respondent should bring the Notice to Appear and any official identification documents.  Family members can attend.

The Notice to Appear also contains allegations about the respondent's illegal status in the United States.  The respondent, with the help of an attorney if possible, should examine these allegations carefully and be prepared to deny them and correct any inaccuracies.

The Master Calendar Hearing itself is brief, though it may take hours for a case to be called.  When the respondent's name and Alien Registration Number are announced, the respondent and counsel, if any, appear before an Immigration Court Judge.  The court will generally provide an interpreter, if needed.

The judge may ask for basic information, such as name, address, and the languages the respondent speaks.  The judge then reviews the charges.  The respondent can deny some or all of the government's allegations and point out any factual errors regarding names, dates, places, or other details.  The respondent can designate—or refuse to designate— a "country of removal," i.e. where to be sent if deported.

The respondent can also state the basis of a claim for relief from removal from the United States.  These may include:

  • Asylum based on persecution in the immigrant's home country. 
  • Marriage to a US citizen.
  • Cancellation of removal for qualifying lawful permanent and non-permanent residents.
  • Adjustment of status from non-immigrant to a lawful permanent resident.
  • Voluntary departure.

At the conclusion of the hearing, the judge gives the respondent a deadline for submitting further applications or documents.  The judge may schedule another Master Calendar hearing for the case, or set a date for an individual hearing on the merits.  The respondent may ask for more time to retain an attorney, submit documents, or prepare for the next hearing.

If you have been notified that you will be subject to a Master Calendar hearing and are at risk of deportation it is imperative to hire an experienced immigration law attorney to protect your rights.  Call us for a consultation.


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