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Child Support in the Arizona Family Court: How Do Social Security Benefits Affect Calculations?
by: Trent R. Wilcox, Esq.

Social Security benefits can affect child support in two ways. First, if either the parent paying child support (the “obligor”) or the parent receiving child support (the “obligee”) receives Social Security benefits, the Arizona Child Support Guidelines require that the Social Security benefits be included in determining either parents income. Thus, the Social Security benefits help to determine the initial child support obligation.

Second, the Social Security benefits can affect the amount of child support that must be paid out of pocket by the parent paying child support. Section 26 of the Arizona Child Support Guidelines addresses this issue and states verbatim as follows:

A. Income earned or money received by a child from any source other than court-ordered child support shall not be counted toward either parent�s child support obligation except as stated herein. However, income earned or money received by or on behalf of a person for whom child support is ordered to continue past the age of majority pursuant to Arizona Revised Statute Sections 25-320.B and 25-809.F may be credited against any child support obligation.

B. Benefits, such as Social Security Disability or Insurance, received by a custodial parent on behalf of a child, as a result of contributions made by the parent paying child support shall be credited as follows:

1. If the amount of the child’s benefit for a given month is equal to or greater than the paying parent’s child support obligation, then that parent’s obligation is satisfied.

2. Any benefit received by the child for a given month in excess of the child support obligation shall not be treated as an arrearage payment nor as a credit toward future child support payments.

3. If the amount of the child’s benefit for a given month is less than the parent’s child support obligation, the parent shall pay the difference unless the court, in its discretion, modifies the child support order to equal the benefits being received at that time.

C. Except as otherwise provided in section 5.B, any benefits received directly, and not on behalf of a child, by either the custodial parent or the parent paying child support as a result of his or her own contributions, shall be included as part of that parent�s gross income.

The interpretation of Section 26, above, minus some of the legalese, is really pretty simple:

A. If a child receives benefits from a source outside of the parent paying child support, it will not normally diminish the paying parent’s child support obligation unless the Arizona Child Support Guidelines provide a specific exception. However, if a mentally or physically disabled child receives child support past the age of majority, those amounts may be credited toward the paying parent’s child support obligation. Notice this is a “may” and not a “shall,” meaning that the court has discretion in this child support matter.

B. If a child receives benefits, such as social security or insurance, because the paying parent made the child eligible to receive such benefits by paying into the system, those amounts will be credited toward the paying parent’s child support obligation in the manners described. Notice this is a “shall” and not a “may,” meaning that the court has no discretion in this child support matter.

C. As mentioned above, a parent who receives payments directly on his or her behalf must include those amounts in income totals used to calculate child support. However, the exception to this provision is provided by the Child Support Guidelines Section 5(B) which states, “Gross income does not include sums received as child support or benefits received from means-tested public assistance programs including, but not limited to, Temporary Assistance to Needy Families (TANF), Supplemental Security Income (SSI), Food Stamps and General Assistance.”

In summary, Social Security and other benefits may affect child support calculations in Arizona. Consult an attorney to find out how your case will be affected.

Disclaimer: Providing the above information does not establish an attorney-client relationship. To create such a relationship, both the attorney and potential client must sign a written fee agreement. The information contained herein is meant only as general information and is not meant to be relied upon for the purpose of taking legal action. You should contact an attorney in person for further and specific information. Wilcox & Wilcox, P.C. attorneys are licensed in Arizona only except for personal injury attorney Robert N. Edwards, who is licensed in Arizona and Minnesota. Information in this article may not apply to states other than Arizona.

About The Author

Attorney Trent R. Wilcox is the managing partner of Wilcox & Wilcox, P.C. Mr. Wilcox practices in the areas of family law, employment disputes and general civil litigation. Mr. Wilcox is admitted to practice in the Arizona state courts and federal district court and is a member of the Maricopa County, Arizona State and American Bar Associations.

Mr. Wilcox has worked closely with the National Center for Missing and Exploited Children to return abducted children to the custodial parent. He has assisted parents from various countries in cases brought under The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.

Mr. Wilcox plays golf professionally when time remains after family and the demands of the law office have been met and when he gets a chance to practice, carries a +3 to +4 handicap.

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7 Advantages to Incorporating
by: Alex Goumakos

There’s no question that hard work and a little luck is what it takes to BE successful. But a little knowledge, especially when it comes to setting up your business, will help you STAY successful.

While many business owners give a lot of thought to location, store décor, customer service, hiring employees and management issues (and rightly so); choosing the proper business structure (such as sole proprietor, partnership, corporation, limited liability company) doesn’t get the attention it deserves. Many entrepreneurs don’t realize this, but the business form they choose can often times be the difference between success and failure, especially in today’s competitive and litigious marketplace. If you want to succeed, you need all the advantages you can get. High on the list of safe bets is the corporate form of business.

Incorporating, while definitely not for everybody, offers several distinct and money-saving advantages over the other types of entities. Here are seven of those advantages:

Asset Protection – If you operate as a sole proprietor or partnership, there is virtually unlimited personal liability for business debts or lawsuits. In other words should you go out of business or be a defendant in a lawsuit, your personal assets such as homes, jewelry, vehicles, savings, etc. are up for grabs. This is generally NOT the case when you incorporate. When you incorporate you are only responsible for your investment in the corporation. The limited liability feature of a corporation, while not a guarantee, is DEFINITELY one of the most attractive reasons for incorporating.

Easier To Sell – Corporations are generally much easier to sell and are usually more attractive to buyers than either a sole proprietorship or partnership. The reason for this is because a new buyer will not be personally liable for any wrongdoings on the part of the previous owners. If someone buys a sole proprietorship, for example, the new owner can be held personally liable for any mistakes or illegalities on the part of the prior owner…even if the new owner had NOTHING to do with the situation! This is usually NOT the case with a corporation.

Tax Savings – When you incorporate there are numerous tax advantages at your disposal that are virtually impossible to accomplish with other business entities. When you incorporate you create a separate and distinct legal entity. Because of this, there are many transactions that you can structure between you and your corporation to save big money on taxes. For instance, if you own a building you can rent office facilities to your corporation and claim depreciation and other deductions for it. Your corporation can then claim the rental expense. You are prohibited from doing this if you are a sole proprietor or a partner in a partnership.

Privacy and Confidentiality – The corporate form of business is a great way to keep your identity and business affairs private and confidential. If you want to start a business, but would like to remain anonymous, a corporation is the best way to accomplish this. States such as Nevada offer even more privacy protection for corporations and their shareholders.

Easier to Raise Capital – When you’re looking to raise money through investment or borrowing, a corporation can actually make finding and getting the money you need easier. If you want to take on investors you simply sell shares of stock. If you want to borrow, a corporation can add clout when dealing with banks or other lending institutions.

Perpetuity – As I mentioned in #3, when you incorporate you create a separate and distinct legal entity. This separate and distinct entity (the corporation) can endure almost forever irrespective of what happens to the shareholders, directors, or officers. This is NOT the case with sole proprietorships, partnerships or even limited liability companies. For example, if an owner, partner, or member dies the business AUTOMATICALLY ends or gets wrapped up in legal red tape. Corporations, on the other hand, have unlimited life.

Increases Credibility – Let’s face it. Most people feel more secure and confident dealing with a corporation as opposed to a sole proprietorship. Having INC. or CORP. after your company’s name adds a touch of professionalism and credibility to your business dealings.

As always, be sure to consult with your attorney or business advisor before undertaking any important legal or financial decision. While there are many advantages and money-saving reasons to incorporate, as I’ve said before, it’s not for everybody. However, you do owe it to yourself to find out more.

Alex Goumakos is a CPA, business advisor and guest consultant of Active Filings LLC, a professional incorporating company that provides services in all US. (http://www.activefilings.com/). Alex can be reached by email at [email protected] Get more free articles at http://www.activefilings.com/activenews/

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Stop Collection Agency Harassment – dated: August 7, 2004 – author: Susan Chana Lask, Esq. – Owing a debt does not automatically subject you to harrassing, threatening and other inappropriate collection agency behavior. Some collection agencies go too far with what I call “renegade collectors” they will repeatedly call you at your home and/or business, threaten to send a marshall over to serve you with lawsuit papers or send intimidating letters, appearing to come from an attorney or law firm, stating that you will lose your car, wages and other property click here for full text.

Filing a Simple Bankruptcy – dated: August 7, 2004 – author: Susan Chana Lask, Esq. – We all know times are tough and, for some of us, bills are getting harder to pay each month. If the debts you owe are more than what you can afford, you should read on. Filing a bankruptcy can be the answer to your problems. click here for full text.

Rights and Obligations with Prenuptial Agreement – dated: September 18, 2004 – author: Jeffrey Broobin – Prenuptial agreements are like insurance policies. You do the paperwork, and then hope you’ll never need it. However, since half of marriages end in divorce within the first seven years, you may want to consider a prenuptial agreement before you walk down the aisle and say, “I do. click here for full text.

What is the Difference Between a Power Of Attorney and a Guardianship? Which is Appropriate for Someone With Alzheimer�s – dated: September 22, 2004 – author: William G. Hammond, JD – A power of attorney is a legal document in which one person (the principal) authorizes another (the agent) to act on his/her behalf. Guardianship, on the other hand, is a legal relationship whereby a probate court click here for full text.

For more asset protection articles see asset protection articles pages 1 | 2

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According to information provided by http://www.plan-my-estate.com an estate planning and asset protection resource web site, a Fraudulent Transfer aka Fraudulent Conveyance is a transfer which a debtor makes for the purpose of defeating a creditor’s collection efforts against the debtor. This typically happens when, say, a debtor attempts to “sell” everything to his wife, cousin or business partner for $5 to keep his stuff out of the hands of his creditors. If the court figures out that the transaction is a sham to defeat the creditor, the court will set aside the transaction and make the person holding the assets give them to the creditor. Basically, Fraudulent Transfer Law is this: You can’t do anything which would impair the rights of your unsecured creditors, if you do then the courts will simply ignore what you have done.

There are thousands of individuals and companies that, through e:mails or via internet web sites, offer to help you protect your assets from creditors, ex spouses and or taxing authorities. Many of these individuals and businesses help you protect your assets by having you take actions that can or will put you in violation of the Uniform Fraudulent Transfer Act. This could, in the long run, not only end up causing you to lose the assets that you were trying to protect but also cost you additional money in court costs, attorney’s fees or collection costs. Additionally, if you had a family member or friend help you, he or she could end up in court or having his or her credit harmed by having a judgment entered against him or her.

Many of these asset protection schemes involve transfering assets to someone you trust, a spouse, other family member, friend or a business that you form. As far as I can determin, if the creditor can prove that the transfer was done in order to avoid creditors, then under the Uniform Fraudulent Transfer Act the creditor has several remedies depending on the circumstances. These remedies can include causing a judgment to be entered against both you and the transferee, causing the property transfered to be attached or levied upon or causing a lein to be placed against the property. There are other remedies set by statute. The one thing that all of these remedies have in common is that you, the transferee or both of you could be held liable for the costs of obtaining and enforcing the remedy.

Note: Another thing to think about. Over the years I have been involved in numerous asset search and recovery matters where the person that the bank account, collectibles, stocks, bonds, real estate or other assets were transfered to ended up closing out, selling or otherwise transfering or encumbering the assets, leaving the original owner with nothing. No matter how much you trust someone today you never know what the future will bring.

Other services offer to set up a revocable living trust. They state that the assets then will belong to the trust and be protected from your creditors. As any competent attorney will advise you, this theory is completely false. Since the assets placed in the trust are yours and since you control the trust then you and the trust are the same thing and a creditor can go after any assets placed in the trust. While a revocable living trust may not be a fraudulent transfer, neither is it a way to protect your assets from creditors.

I am not saying that all asset protection companies are worthless or might get you into trouble. I assume that there are some excellent and knowledgeable asset protection companies out there. I just would feel safer getting advice directly from an attorney.

The best way to find out if your assets can be protected and if protecting them is worth the cost is to seek the advice of an attorney who specializes is asset protection, debt collection, estate planning or, in certain cases, bankruptcy law. In some cases the attorney will provide a free or low cost consultation.

Note: I am not an attorney and none of the foregoing should be construed as legal advice. This article is written strictly as my opinion based on life experiences through both my personal life and my work as a private investigator dealing with attorneys in asset search and recovery matters. As in all matters of law you should always consult an attorney before taking on any legal endeavor.
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What is the Difference Between a Power Of Attorney and a Guardianship? Which is Appropriate for Someone With Alzheimer’s?
 by: William G. Hammond, JD
A power of attorney is a legal document in which one person (the principal) authorizes another (the agent) to act on his/her behalf. Financial powers of attorney allow your agent to make decisions regarding your property. Healthcare powers of attorney allow your agent to make decisions regarding your health care needs.
A power of attorney permits you to appoint someone else to manage your financial and business affairs when you cannot do it yourself anymore.
This document can be a lifesaver when crisis situations occur after an accident or illness. The agent can do whatever the document allows, such as withdraw bank funds, pay bills, cash checks, and buy and sell real estate. The power of attorney is less costly and more private than a guardianship.
Guardianship, on the other hand, is a legal relationship whereby a probate court gives a person (the guardian) the power to make personal decisions for another (the ward).
A family member or a friend can initiate the proceedings by filing a petition in the probate court in the county where the individual resides. A medical examination by a licensed physician may be necessary to establish the individual’s condition. A court of law will then determine whether the person is unable to meet the essential requirements for his/her health and safety.
A conservatorship is a legal relationship whereby the probate court gives a person (the conservator) the power to make financial decisions for another (the protectee). The court proceedings are very similar to those of a guardianship except the court determines whether an individual lacks the capacity to manage his or her financial affairs. If so, the court appoints a conservator to make monetary decisions for the individual. Often the court appoints the same person to act as both guardian and conservator for the individual. Like the guardian, the conservator is required to report to the court yearly.
With all this in mind, you should evaluate your situation. What would you do if you could no longer handle your own affairs? You may want to consult with an attorney specializing in Elder Law, who will be able to assist you and advise you in this matter. By doing this now when you still have the time, you will save yourself and your loved ones heartache and financial expenses in the future.
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Preparing And Protecting Yourself For A Divorce
By: J. Mahserjian & W. Clark

No one thinks that they will ever be in the position of preparing themselves for an immanent divorce.
No one thinks that they will ever be in the position of preparing themselves for an immanent divorce. There is, however, perhaps nothing as bad as being taken totally by surprise when your spouse announces that he or she wants a Separation and Divorce. If your are not prepared, you could come home one day to an empty house and a note, with your spouse, children, property and savings. If your spouse has planned well, you may find that assets have been siphoned off or dissipated over time, or that a move was carefully orchestrated with the assistance of counsel in an attempt to bootstrap a Custody issue. Although that kind of orchestrated devious planning happens infrequently, it does occur and should serve as a lesson to anyone who is considering Separation or Divorce: planning and tactics are critical and should be undertaken by everyone.
Since Divorce is often a battle over finances, having all of the possible information about your finances is critical. You should have copies of at least your last three years income tax returns and your and your spouse’s w-2’s for each year.
Those figures are critical to any early application to the Court for child or spousal support. If you do not know where those documents are, you may request copies from the IRS. If you are in a situation where you do not want your spouse to know that you are undertaking Divorce planning, have those documents sent to your work address, a friend, or to your attorney.
In addition to your tax returns, you will need information about all of your assets and debts. If you have investment accounts or charge accounts, you will want copies of statements that cover a substantial time period. If any of those accounts pre-date your marriage, you will need copies of the statements from prior to your marriage. These will show what part of the asset or debt was accumulated during your marriage.
If Custody will be a disputed issue in your case, you will need to prepare an outline for your attorney of how your children have been cared for by you and/or your spouse. If you have shared parenting responsibilities, or if you have been the primary parent caring for your children, that outline will be important in presenting all of the facts to the Court that decides temporary Custody. If you have not shared or undertaken most of the parenting responsibilities but want shared or primary Custody, you will need to provide your attorney with all of the facts that would convince a Court that you should still be awarded a shared or primary parenting schedule. Information that could be important in that situation includes detailing any domestic violence committed by your spouse or discussing other facts that demonstrate that your spouse is not fit to be the primary custodial parent.
An outline of the history of your marriage will be critical to other issues that your attorney will need to consider. Many attorneys request that you provide some sort of written outline to assist them. If yours does not, prepare on anyway. The work that you put into that outline will help your attorney and save attorney time in preparing for your case. That savings in time will translate into a savings on attorneys fees for you.
If spousal support will be requested, your attorney needs to have a history of marital earnings and spending, and current expenses. If you or your spouse will be contesting grounds for Divorce, your attorney will need an outline of those issues.
If you are the party seeking a Divorce, put together a detailed list of all of the incidents in your marriage that you believe entitle you to a Divorce. If you are contesting the Divorce, put together a detailed history of your marriage and outline why you believe your spouse’s claim for Divorce is not credible or fair.
The more time that you spend gathering, preparing and outlining critical facts and information for your attorney, the less time you will spend in your attorney’s office discussing those issues with your attorney. That translates into less time spent on basic fact gathering and more of your resources spent on tactics and planning. With proper planning, your rights will be preserved and you will be protected if your spouse does file for a divorce.
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The legal fiction of common law marriage
 by: Johnette Duff
During a radio-talk show appearance, a caller told me about his unfortunate brush with the legal fiction of common-law marriage. He had been living with a woman for several weeks when he came home one evening to find the woman, his TV and assorted other property missing. He called the police, who mistakenly informed him that the woman was his common-law wife and so they couldn’t help him.
What qualifies as a common-law marriage? Take your pick:
Leaving too many clothes at your girlfriend’s house?
Living together six months
Living together seven years?
Chances are you picked the third answer, but all three response are equally wrong. A common misconception is that the length of cohabitation creates common-law status. This is not true.
Three elements are necessary and none relate to a time-frame. A couple must
Live together
Agree between themselves to be marriage
Represent themselves as married (also called “holding-out.”)
The agreement in the second element does not have to be written; it can be implied by the behavior of the parties. Signing leases as husband and wife or filing joint income tax returns are examples of the proof used to imply a common-law marriage.
In the example above, the police, as are most people, were woefully misinformed.
Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, Utah and D.C. recognize common-law marriages. Ohio repealed its recognition in 1992. Pennsylvania has just now abolished it. Other states may recognize an informal marriage if it was originally contracted within one of these states.
In the past, common-law marriage was often seen on the lower socio-economic rungs of the ladder. However, celebrities often make the news with claims by their live-ins of this status.
If you are concerned about your own status, contact an attorney in your state for more information.
About The Author
Johnette Duff is a Matrimonial Attorney licensed to practice in the state of Texas. She is the author of “The Spousal Equivalent Handbook”, “The Marriage Handbook” and “Love After 50”: the complete legal and financial guide. She has helped thousands of individuals build successful relationships.
[email protected]
This article was posted on October 21, 2003
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7 Advantages to Incorporating
 by: Alex Goumakos
There’s no question that hard work and a little luck is what it takes to BE successful. But a little knowledge, especially when it comes to setting up your business, will help you STAY successful.
While many business owners give a lot of thought to location, store décor, customer service, hiring employees and management issues (and rightly so); choosing the proper business structure (such as sole proprietor, partnership, corporation, limited liability company) doesn’t get the attention it deserves. Many entrepreneurs don’t realize this, but the business form they choose can often times be the difference between success and failure, especially in today’s competitive and litigious marketplace. If you want to succeed, you need all the advantages you can get. High on the list of safe bets is the corporate form of business.
Incorporating, while definitely not for everybody, offers several distinct and money-saving advantages over the other types of entities. Here are seven of those advantages:
Asset Protection – If you operate as a sole proprietor or partnership, there is virtually unlimited personal liability for business debts or lawsuits. In other words should you go out of business or be a defendant in a lawsuit, your personal assets such as homes, jewelry, vehicles, savings, etc. are up for grabs. This is generally NOT the case when you incorporate. When you incorporate you are only responsible for your investment in the corporation. The limited liability feature of a corporation, while not a guarantee, is DEFINITELY one of the most attractive reasons for incorporating.
Easier To Sell – Corporations are generally much easier to sell and are usually more attractive to buyers than either a sole proprietorship or partnership. The reason for this is because a new buyer will not be personally liable for any wrongdoings on the part of the previous owners. If someone buys a sole proprietorship, for example, the new owner can be held personally liable for any mistakes or illegalities on the part of the prior owner…even if the new owner had NOTHING to do with the situation! This is usually NOT the case with a corporation.
Tax Savings – When you incorporate there are numerous tax advantages at your disposal that are virtually impossible to accomplish with other business entities. When you incorporate you create a separate and distinct legal entity. Because of this, there are many transactions that you can structure between you and your corporation to save big money on taxes. For instance, if you own a building you can rent office facilities to your corporation and claim depreciation and other deductions for it. Your corporation can then claim the rental expense. You are prohibited from doing this if you are a sole proprietor or a partner in a partnership.
Privacy and Confidentiality – The corporate form of business is a great way to keep your identity and business affairs private and confidential. If you want to start a business, but would like to remain anonymous, a corporation is the best way to accomplish this. States such as Nevada offer even more privacy protection for corporations and their shareholders.
Easier to Raise Capital – When you’re looking to raise money through investment or borrowing, a corporation can actually make finding and getting the money you need easier. If you want to take on investors you simply sell shares of stock. If you want to borrow, a corporation can add clout when dealing with banks or other lending institutions.
Perpetuity – As I mentioned in #3, when you incorporate you create a separate and distinct legal entity. This separate and distinct entity (the corporation) can endure almost forever irrespective of what happens to the shareholders, directors, or officers. This is NOT the case with sole proprietorships, partnerships or even limited liability companies. For example, if an owner, partner, or member dies the business AUTOMATICALLY ends or gets wrapped up in legal red tape. Corporations, on the other hand, have unlimited life.
Increases Credibility – Let’s face it. Most people feel more secure and confident dealing with a corporation as opposed to a sole proprietorship. Having INC. or CORP. after your company’s name adds a touch of professionalism and credibility to your business dealings.
As always, be sure to consult with your attorney or business advisor before undertaking any important legal or financial decision. While there are many advantages and money-saving reasons to incorporate, as I’ve said before, it’s not for everybody. However, you do owe it to yourself to find out more.
About The Author
Alex Goumakos is a CPA, business advisor and guest consultant of Active Filings LLC, a professional incorporating company that provides services in all US. (http://www.activefilings.com/). Alex can be reached by email at [email protected] Get more free articles at http://www.activefilings.com/activenews/
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Bankruptcy
Most people are aware of the two most common forms of personal bankruptcy being chapter 7 and chapter 13. Are there any other bankruptcy options to choose from? There is a chapter 11 option which can be used by consumers; however, it is usually the choice of corporations that are looking to reorganize debts. There is also chapter 12, but that chapter pertains to the family farmer. There are not too many family farmer cases being brought in the Northern District of Illinois. Thus, there are really only two good options when it comes to seeking bankruptcy relief. I will illustrate the basics of each chapter below.

Chapter 7 is by far the most common form of bankruptcy relief. There were over 1.4 million bankruptcy cases filed in the United States this past fiscal year and over 70% of those cases were the chapter 7 variety. Why are there so many Chapter 7 filings? The answer to that question is simple. Chapter 7 is for the honest debtor who does not have much in the way of assets yet has a lot of unsecured debt. It is known as liquidation bankruptcy although in most cases, there is nothing for the bankruptcy trustee to liquidate. The debtor typically receives a discharge and keeps all of his exempt property. For information of filing Chapter 7, seek the advice of a chapter 7 bankruptcy attorney.

Chapter 13 is the less used yet very helpful chapter under the bankruptcy code. Chapter 13 is a reorganization of either all or a portion of one’s debts over a period of three to five years. The debtor makes a monthly payment to a Chapter 13 Trustee who disburses amounts to creditors in accordance with the bankruptcy code. Creditors have an opportunity to file a proof of claim to partake in the payment plan. If creditors do not file a proof of claim, then they may not receive a payment at all. Secured creditors still have rights whether or not a claim is filed, but they should seed bankruptcy advice. They can bring a motion before the court to seek recovery of their asset should payments not be forthcoming.

In the Chicago area, there are three Chapter 13 bankruptcy trustees. Each Trustee is different in terms of office procedures and policies. It is best to get familiar with the different Trustees if you are going to practice Chapter 13 bankruptcy law. That is the best advice that I can give if you are thinking of becoming a Chicago bankruptcy lawyer. Once you are aware of how the system works, you will then be in a position to give great advice. In my opinion, it takes years to become truly versant in the bankruptcy arena. Those attorneys that file a case here and there are really at a huge disadvantage. The marketplace has seen great changes since bankruptcy reform. It is only the ones that practice diligently that can hope to handle the tough caseload.
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Claiming bankruptcy

The Form 22 “means test” is one of the most complicated documents in bankruptcy. Form 22 determines how much, if any, debtors can afford to repay to their creditors after they have decided to claim bankruptcy.If the debtors’ income is under the median for their household size, calculation of Form 22 is not required. Debtors are also exempt from Form 22 if the majority of their debt is non-consumer debt. In those situations, the repayment is determined by their monthly income and reasonable monthly expenses, without consulting Form 22.If a debtor’s gross income is above the median, the Form 22 Means Test must be computed. Form 22 is complicated, and very difficult to compute without a working knowledge of how the form works. Generally speaking, Form 22 objectively determines if and how much debtors can afford to repay their creditors. Recent changes in income, large tax refunds, earned income tax credits, and high mortgage and property tax expenses can cause difficulties in calculating Form 22.

This calculation is complex and should be left to the Chicago bankruptcy lawyer. Form 22 generates two numbers. The first number is the debtor’s average gross income over the last six full calendar months. Gross income is determined by one’s paycheck, business profit/loss for self-employed debtors, rental income, unemployment benefits, retirement benefits, and generally almost every other source of income. The second number is the allowed deductions. The allowed deductions are based on household size and determined in part by the IRS national standards for household utilities, food, clothing, household supplies, personal care, and the like. They also include deductions for the following items:

Mortgage payments and property taxes (if greater than the standard rent allowance).
Healthcare expenses, such as co-pays and prescription costs.
Cost of operation for vehicles, public transportation costs, and an allowance for car payments.
Payroll taxes and involuntary payroll deductions like union dues.
Term life insurance for dependents.
Court order payments (typically child and spousal support).
Educational expenses for a physically or mentally challenged child.
Childcare expenses, such as baby-sitting and daycare.
Health insurance, disability insurance, and healthcare savings account.
Support of elderly or disabled individuals.
Some educational expenses for children under 18.

Once the calculation is completed, the difference between the income and deductions must be repaid to GUC over the course of five years. For example, if the gross income averages $5,000 per month and the allowed deductions total $4,700 per month, then the creditors must receive a total of $18,000 ($300 x 60 months). For assistance with the means test, seek proper bankruptcy advice.
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Bankruptcy Lawyer

There are so many lawyers throughout the city, how in the world do you go about finding a qualified Chicago bankruptcy lawyer? The answer is not as difficult as it may seem. Before there was the internet, it was really hard to research the skills of a particular lawyer.

Today, there is so much information published on the internet. You can see what they’ve written. You can often see videos that will give you a feel of what the lawyer is all about. You can also read reviews given by past clients. If you see 10 reviews all panning the attorney and stating he was rude, you would be best to avoid that attorney.

Remember that location is important, but only in certain products or services. For example, I would drive great distances if I knew that the provider was an authority. Some people make the mistake of hiring an attorney simply because he or she is close in distance.

To do so is simply being short-sighted. What good is a local attorney if that attorney is not qualified to serve that area of law? Perhaps that attorney is not truly experienced and you suffer as a result. Do yourself a favor; go with the better attorney even if you have to travel a greater distance. You are likely only going to claim bankruptcy once, make sure that you hire the right attorney.

Some people think that they can handle the bankruptcy matter without an attorney. If you are someone who wants to file bankruptcy yourself, please keep this in mind. The bankruptcy laws were revised in 2005 and the cases have become more difficult to negotiate.

It used to be that you could buy forms at the local office supply store, fill them out by hand, walk into the clerk’s office and get a final court date. Those days are long gone and they are never coming back. Today, you have to be aware of so many deadlines and pre-requisites. You have to time everything properly or your case will get automatically dismissed.

If you live in Illinois, you need to consult with an Illinois bankruptcy attorney. If you border a state with Illinois, keep in mind that the laws of the states are different. Some states allow you to protect higher equity amounts than others.

The state that you live in governs your filing. In the northern section of Illinois, I often receive calls from people who live in Wisconsin and work in Illinois. Those people have to file in Wisconsin and must be governed by the bankruptcy laws of that jurisdiction.

There are great differences in trustees when it comes to Chapter 7 and Chapter 13 as well. You will find that Chapter 7 is a much more simplified process as opposed to Chapter 13.
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Bankruptcy Advice
People are often worried about filing bankruptcy because they’re afraid of losing their house and their car. In reality, most people do not lose property provided they seek the right bankruptcy advice. In a Chapter 7 case, also known as liquidation bankruptcy, the trustee can liquidate any non-exempt assets that you have. For instance, if you have equity in your house or equity in your car, that could be subject to distribution from the trustees to the creditors. However, in Illinois, you have several exemptions, and those exemptions are doubled with your spouse if you have a spouse filing with you. Those exemptions, which exempt a portion of certain things allow you to protect property. For instance, for your car, you have a $2,400.00 exemption, meaning $2,400.00 is protected for equity purposes.

So, if you have a car that’s worth $5,000.00, your exemption of $2,400.00 really makes the equity $2,600.00, and if you have a joint filing spouse, that exemption doubles to $4,800.00, so you only really have $200.00 of equity. At that point, a trustee is not going to have the headache of distributing and paying for the cost of distributing that asset. It’ll cost more money for them and more time for the trustee to do all this instead of just letting it go. So you do have exemptions. Not only do you have a $2,400.00 exemption for your automobile, but you also have what’s called is the wild card exemption. The wild card exemption is $4,000.00 for one person, $8,000.00 for a joint-filed case. That wild card exemption can be applied to anything of personal property. It does not apply to real estate. You don’t need to be overly concerned since your chapter 7 bankruptcy attorney will handle the legal end of the filing.

Your house also has an exemption of $15,000.00 of equity for one person. In Illinois, it’s $15,000.00. If you have a spouse that is filing, it will be $30,000.00. So you can protect $30,000.00 of equity in your house. In today’s economy, unfortunately, most people don’t have equity in their houses. However, some people still do, and it can still be protected to a certain amount. If you have a mortgage or a car payment still on your house or your car, those things will not be subject to the taking of the trustee in bankruptcy if you decide that you wish to continue to make payments to the car note and the mortgage note. There is a lot of confusion when it comes to the liability of the debtor when it comes to a house and a car, and I hope this is going to clear that confusion. Rest assured, if you are going to claim bankruptcy, your attorney will ensure that your assets are not at risk.

legal variety criminal – chapter 7-11 – family
 

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How to Talk to the Police if Your Suspected of a Crime
by: Susan Chana Lask, Esq.

If you’re suspected of a crime, the police can come to your house or work or find you on the street to talk to you. Usually it will be a detective in plain clothes in an unmarked car who will want to talk to you. You might find a card from the detective under your door, or a message on your phone from him asking you to call.

You always have the right to remain silent, as anything you say to a police detective will be used against you in court. You also have the right to be represented by an attorney when talking with the police.

Just because a detective comes around looking for you doesn’t mean you have to speak to him or see him at the police precinct. If the detective is at your door, you don’t have to open it for him unless he has a warrant. If a detective is knocking at your door, you don’t have to answer. You can wait until he leaves if you want and then of course call your attorney.

Usually, a detective will hound you to come into the precinct headquarters to “talk”. But once you set foot into the precinct, the detective will have you at his mercy, where he can use different routines – such as “good cop/bad cop” – or violate your rights just enough to be “legal” to get you to talk. Maybe he’ll take your backpack from you or other property you came in with like your cell phone, then direct you to wait for him, leaving you alone in a room for what could feel like a lifetime. He may even ask you to write your version of the story down and then use that against you later.

The police are experts trained in gaining your trust and confidence. They know what to say and what tone to use with you. They will lie and misinform you to get information they want. They can tell you they have witnesses when they do not or say they will lower the charges when they will not. The police most likely will not read you your rights because they want to create an informal, relaxed appearance so you will spill the beans voluntarily.

Good Cop, Bad Cop

If you’re not talking then detectives may use the “good cop/bad cop” routine. The first cop sits alone with you in a small room and talks about the “crime”. If he’s not getting the information he wants to hear to nail you, then you may find yourself standing at the fingerprint machine with another more sensitive cop. Once you’re at the fingerprint machine you can be sure you’re being charged despite the fact that no one explained anything to you, read you your rights or told you what you’re being charged with. Part of the game is to keep you disoriented and guessing your situation. If you hear the new cop say “just tell the detective what he wants to hear and you’ll get out of here faster on a lesser charge” then you are being “played” and you definitely need to keep quiet. Don’t say something just because you think it will get you out faster, because you’re already in there and you’re going to go through the arrest process no matter what.

When the police tell you the consequences of a crime they intend to charge you with, or that they can lower the charge, don’t believe anything they say. They can and will lie to you to get you to talk so they can make an arrest. The police are not your attorney, they are not your friends– they are there to make an arrest.

The only way to protect yourself is to remain silent at all times. Enforce your right by consistently and politely stating “I am remaining silent until I have counsel.” The police can not interrogate you once you invoke that right, although they will try to interrogate you. They also can’t interrogate you unless they first read you your rights.

When you arrive at the police precinct , the police should have you sign a paper with your legal rights listed on it. They should have you read your rights while they read it to you, and then have you initial each right and sign the paper at the bottom with the time and date. This paper is a good thing for the police to prove they followed procedure and it will coordinate the time of your arrest closely with the time of reading your rights. It is not mandatory that they give you this paper with your rights, because they can by law verbally read you your rights and note in their notebook the time they read you your rights. Of course, they could never read you your rights and later say they did.

Hiring An Attorney

If a detective is hounding you with phone messages and coming by your house leaving cards with your roommate or family, immediately get an attorney. An attorney can determine if the police are going to arrest you. If you are going to be arrested then your attorney will advise you what to do (and what to say or not say), explain the arrest process, arrange for you to turn yourself in and get you through the process quicker. Also, the police will know they can’t interrogate you if you’re represented by counsel.

A good attorney will fax a letter of representation to the precinct and follow you through the arrest process by calling the proper offices and getting you to arraignment and out quicker. Your attorney should also fax a notice of appearance on your behalf to the Arraignment Clerk’s Office the minute he or she discovers you’ve been “docketed” by the District Attorney’s office (meaning they’ve drafted and filed a Criminal Complaint against you and assigned a docket number to your case so it can be heard by the court).

If you do not voluntarily turn yourself in then the police will remember you made it harder for them to arrest you and they may purposely delay your arrest process and make you sit for three days in jail before you see a judge. They’ll delay filling out your paperwork and sending it to the proper offices. They may even lose your paperwork.

The last thing you want to do is spend a minute longer being arrested and in jail so here’s a valuable tip: don’t turn yourself in or get arrested at night or on a weekend because there are less people working those shifts and the courts close certain hours, so the process can take three days or sometimes longer.

Susan Chana Lask is a New York attorney with law offices in New York City. She has over 20 years experience and practices in State, Federal and Appellate Courts nationwide, handling civil, criminal and commercial litigation and appeals. She represents high profile cases and appears on all major television, print and radio news media, earning the title “High-Powered” New York attorney. She can be reached at www.appellate-brief.com.
[email protected]

This article was posted on October 4, 2004

The opinions, statements and information contained and expressed in the foregoing article are solely those of the author. No position for or against, agreeing with or disagreeing with anything contained in said article is taken by US Attorneys Directory.com. We do not assume or accept any liability for the use of the information contained herein. This article is published solely as a service to attorneys, lawyers and the internet community. Anyone who does not accept this disclaimer is not authorised to read or use this article in any way.

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Find A Bankruptcy Lawyer
When people find a bankruptcy lawyer to assist them, they are surprised to find that there are several bankruptcy options and not just one option. Bankruptcy is not the death sentence that some people think. In fact, credit offers are readily available after filing for bankruptcy. This is partly due to the fact that creditors know that you cannot file for Chapter 7 bankruptcy protection within 8 years of a prior filing. Thus, there is plenty of time for a creditor to seek collection in the event of default. However, the goal is not to have you default again after filing. The goal is to earn interest on the money being loaned out.

Most people are aware of Chapter 7 bankruptcy and the relief that it provides. What most people don’t realize is that there are many steps to the bankruptcy filing. Long gone are the days where consumers purchased forms at the local office supply store and paid the clerk of court a small filing fee. In fact, things have changed greatly. Some of the bankruptcy basics have stayed the same. There is still a meeting of creditors and a notice is still sent to all parties to the case. However, so much had changed in terms of items required to file.

If you are even considering claiming bankruptcy, you are going to want to start saving particular items. The first item would be all of your bills. These include credit card statements, medical bills and any other type of evidence of debt. Your attorney will need those documents in order to properly prepare your bankruptcy petition. Next, you should start to save your pay check stubs. These are needed under the current bankruptcy law. If you do not have stubs, we can print out an affidavit stating that you do not receive such proof of income. If you are receiving any other type of income, keep a record of it for your case filing.

Do keep in mind that there are some alternatives to bankruptcy. They don’t always work and I caution clients against something that sounds too good to be true. Sometimes, a creditor will be willing to reduce the balance in exchange for a lump sum payment. The problem is that most debtors do not have the ability to make that lump sum payment. Explore all of your options and remember that bankruptcy is not a death sentence. You can re-establish credit within approximately 6 months to 2 years after filing for bankruptcy protection.
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Client Satisfaction Attorneys
At Wade Law Group, we care about the relationships that we build with our clients and we take great pride in making a total commitment to excellence on their behalf. We are never satisfied until each client can state that we have made a 100% commitment to excellence on the client’s behalf. We are accessible, responsive and flexible as we strive to add value to the attorney client relationship. We have structured our law firm so that no client’s needs will go unattended. At Wade Law Group we know that in many instances a client’s crisis can arise quickly and require prompt attention. We also know that legal services add far greater value when targeted to reach a client prior to a critical decision being made, rather than after an improper decision has been made. We dedicate ourselves to assisting clients when they need it most, not when it is most convenient for us. Not only do we provide our clients with personal attention, but also we return client phone calls 24/7, and we do not delay in providing our clients with the services that they need.

Our clients’ needs come first and our attorneys do everything possible not only to build great rapport with our clients, but also to adhere to their every need in a complete, expeditious and conscientious manner. We listen well, are responsive and we handle our clients’ legal matters as if they were our own. We practice law creatively and with integrity. We counsel our clients to do the right thing in the right way, consistent with achieving their business and personal objectives. We treat all of our clients as long-term business partners. We combine our excellent legal skills and conscientious and personal client representation with our clients’ good judgment, to play an active role in helping our clients succeed. We believe that as our clients succeed, we also succeed. Most importantly, we create a spirit of partnership with our clients and involve them in our work to the extent they wish. For some clients this may mean only periodic status reports, while others may wish close participation at every stage of the counseling, negotiation or litigation.

Whatever level of involvement is desired, we view our clients as our informed partners. We know that our work represents our clients’ time and money. Consequently, our goals as well as the strategies that we propose to meet them, grow from our commitment to target our legal services where and when they will realize the greatest value for the time and money that our clients devote to themselves and/or their businesses. More than anything, we are proud of the friendships that we develop with our clients, who trust us with their most important investments, themselves and/or their businesses.
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Child Support

Child support is a legal duty paid by both parents. The amount of child support that the one parent pays to the other parent is determined by the Florida Child Support Guidelines. There is a formula that is used to calculate the amount of child support to be paid by both the parents. The child(ren) have the right to be supported by both parents. It is important that the proper numbers are input so that the correct child support is obtained.

Child support is a legal duty paid by both parents. The child support is not for the personal use of the receiving parent. It is the child(ren)’s money and is to be used for their use only. The parents that are involved in the divorce/paternity action do not have the right to waive child support.

When calculating the proper child support amounts there are a number of factors to consider that affects the child support that is actually Ordered by the court. Some of those issues are: the amount of overnights that each parent has the child(ren); The financial needs of the child(ren) such as day care expenses, medical/dental insurance, uninsured medical payments, the income of both parents.

One of the main issues to consider in regards to child support is the amount of overnights that the non-custodial parent has the child(ren) in his/her custody. If the non-custodial parent has forty percent or more of the overnights during the course of the year (146 overnights) then the guidelines are calculated differently and a reduction of the non-custodial parents obligation. It is important to secure a timesharing schedule with your child(ren) that is as close to a fifty percent number of overnights as possible.

Child Support vs. Visitation Rights

The issues of child support and child visitation (time sharing) are two separate and distinct matters. If a parent is not paying his/her child support as Ordered, the custodial parent must continue to allow the other parent his/her visitation (time sharing) rights. On the other hand, if the one parent is not allowing the visitation that is Ordered in a particular case the other parent must continue to pay child support. It is the child’s right to be supported and the actions or inaction of one or both parents should not affect that right.

Modifications of Child Support

We can help you determine if you will be able to modify your child support.

Modification of child support is always possible. But there must be a substantial and material change in circumstances in the income, usually of the parent who is paying the child support. It is important that the guidelines are properly calculated from the beginning. Modifications are possible but can be costly considering attorneys’ fees and costs. Full financial disclosure is necessary, including mandatory disclosure. There is the possibility that the application of the child support Guidelines on its own will warrant a Modification of the court Ordered child support.
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CAN YOUR MARRIAGE BE SAVED?

Are you sure your marriage cannot be saved? Before you take any legal steps to end your marriage, you may consider possible ways to save it. You may wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi or other professional. Many social and religious organizations offer counseling services at reasonable rates. Your family law attorney may refer you to someone who can counsel you individually or together with your spouse. Some counseling services are free, and some services are offered on a sliding-scale basis related to your ability to pay.

OVERVIEW

A divorce is called a “dissolution of marriage” in Florida.

Florida is one of the many states that have abolished fault as a ground for dissolution of marriage. The only requirement to dissolve a marriage is for one of the parties to prove that the marriage is “irretrievably broken.” Either spouse can file for the dissolution of marriage. You must prove that a marriage exists, one party has been a Florida resident for six months immediately preceding the filing of the petition, and the marriage is irretrievably broken. The reason for the irretrievable breakdown, however, may be considered under certain limited circumstances in the determination of alimony, equitable distribution of marital assets and debts, and the development of the parenting plan.

The parties, facts, and circumstances in each case are unique; therefore, outcomes can differ from case to case. Outcomes in a dissolution of marriage include, among other things, the division of assets and debts, awards of spousal support, awards of child support, and decisions on parental responsibility and/or time-sharing schedules. There is no “one-size-fits-all” or “standard” dissolution of marriage in Florida.

The dissolution of marriage process can be highly emotional and traumatic for couples as well as their children. Spouses often do not know their legal rights and obligations. Court clerks and judges can answer some basic questions but cannot give legal advice. Only a Florida family law attorney can provide legal advice. Statutory requirements and court rules must be strictly followed or you may lose certain rights permanently. The Florida Bar recommends you obtain the services of Florida family law attorney concerning legal questions, which include discussions regarding your rights and responsibilities in a dissolution of marriage. A knowledgeable attorney can analyze your unique situation and help you make decisions in your and your children’s best interests.

DISSOLUTION PROCEEDINGS THROUGH THE COURT

REGULAR DISSOLUTION OF MARRIAGE

Beginning the court proceeding:

The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court in the county where you and your spouse last lived together or in a county where either party resides. Either spouse may file for a dissolution of marriage. The petitioner must allege that the marriage is irretrievably broken. The petition sets out what the petitioner wants from the court. The other spouse must file an answer within 20 days of being served, addressing the matters in the initial petition, and can choose to include a counter-petition for dissolution of marriage raising any additional issues that spouse requests the court to address.

Automatic financial disclosure:

Court rules governing a dissolution of marriage require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or several days before any temporary hearing. Failure to provide this information can result in the court dismissing the case or not considering that party’s requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases in which financial relief is sought. A child-support guidelines worksheet also must be filed with the court at or before any hearing on child support. This requirement may not be waived by the parties or the court.

Mediation:

Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching an agreement without a protracted process or a trial. Its purpose is not to save a marriage but to help divorcing spouses reach a solution and arrive at agreeable terms for handling the break-up of the marriage. Many counties have public or court-connected mediation services available. Some counties require spouses to attempt mediation before a final hearing (also known as “trial”) can be set.

Formalizing settlement terms:

Some spouses agree on some or all of the issues before or after the petition is filed. Issues may include the division of property, a parenting plan, spousal support, child support or attorney’s fees. Parties who have reached an understanding as to their desired outcome(s) enter into a written agreement that is signed by both parties and then presented to the court. Parties who do not yet have a written agreement but have reached an understanding may also appear for a final hearing with a suggested settlement that they ask the court to accept and incorporate into a final judgment. In such uncontested cases, a dissolution of marriage can become final in a short amount of time. Reaching an agreement empowers parties to create terms with which they are more likely to comply rather than leaving decisions up to a judge.

Contested final hearing:

Finally, some spouses cannot agree on all issues, so a final hearing (or “trial”) is required. Each party will present evidence and testimony to the judge during the final hearing, and then the judge makes the final decision on the contested issues.

PARENTING PLAN CONSIDERATIONS

It is the public policy of Florida to ensure that each minor child has frequent and continuing contact with both parents after the parents have separated or the marriage is dissolved and to encourage parents to share the rights and responsibilities, and joys, of child-rearing. The court gives both parties the same consideration in determining parental responsibility and time-sharing, regardless of the child’s age or gender.

In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. Shared parenting requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child’s welfare, such as education, religion or medical and dental needs. The court will determine any or all of these matters if the parties cannot agree.

In very rare cases, the court can order sole parental responsibility to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child.

In determining parental responsibility, the court will approve or devise its own Parenting Plan, which includes responsibility for the daily tasks of child-rearing, the time-sharing schedule, and decision-making authority relating to health care, school and related activities. The Plan also will specify any technology that will be used for parent-child communication. The parents may agree on a Parenting Plan and submit it to the court for approval, or the court will determine these issues. The statute includes a list of factors for the court to consider in making these decisions.

The courts use the best-interests-of-the-child standard when considering parental issues.

Florida law requires both parties to attend a parenting course before entering a final dissolution of marriage. Some courts require children of parents going through dissolution of marriage to attend a class specifically designed for them. Consult your county clerk’s office for information on courses offered.

DIVISION OF ASSETS AND DEBTS

One of the most difficult and complex areas of dissolution of marriage is the division of assets and debts. Assets may include cars, houses, retirement benefits (pensions and 401(k) plans), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Debts (also called “liabilities”) include mortgages, car loans, credit card accounts and other amounts of money you and your spouse owe to third parties.

There are two types of assets and debts in Florida – nonmarital and marital. Generally, any asset or debt acquired during the marriage is considered marital and subject to distribution. The parties also may have assets or debts that are considered nonmarital and should be awarded to only one party.

Florida statutes and case law provide for an “equitable distribution” of marital assets and debts. Although the court must begin with the presumption that all marital assets and debts are to be divided equally (50 percent each) between the parties, the court may distribute the marital estate fairly or equitably (not necessarily equally) between the parties, regardless of how title is held. A court decides equitable distribution before considering alimony. Equitable distribution is based on a long list of factors the court is required to consider.

Factors to be considered by the court include the contribution of each spouse to the marriage; the duration of the marriage; and the economic circumstances of each spouse. The court should approve your agreement if the court finds it to be reasonable. If you and your spouse cannot agree, the court will divide the assets and debts during trial.

ALIMONY

After equitable distribution, the court may consider an alimony award. The court may grant alimony to either spouse. For the court to award alimony, the requesting spouse must demonstrate a need for alimony and the ability of the other party to pay. Once the requesting spouse has established a need and an ability to pay, the court must determine all relevant factors to determine the property type and amount of alimony to award.

For purposes of determining alimony, there is a rebuttable presumption that a short-term marriage is a marriage having a duration of less than 7 years, a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater. The length of a marriage is the period of time from the date of marriage until the date of filing of an action for dissolution of marriage.

Bridge-the-gap alimony may be awarded to help a spouse make a transition from being married to being single. Bridge-the-gap alimony is designed to assist a spouse with legitimate, identifiable short-term needs. There are limits as to the length and conditions of a bridge-the-gap alimony award.

Rehabilitative alimony may be awarded to assist a spouse in establishing the capacity for self-support through either the redevelopment of previous skills or credentials, or the acquisition of education, training or work experience necessary to develop appropriate employment skills or credentials. The court must articulate a specific rehabilitative plan to award alimony so both parties clearly understand the expectations placed on the alimony recipient.

Durational alimony may be awarded when permanent periodic alimony is inappropriate. The purpose of durational alimony is to provide a spouse with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need for support on a permanent basis. There are limitations as to the length and modifiability of a durational alimony award.

Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a spouse who lacks the financial ability to meet the needs and necessities of life following a dissolution of marriage. There are limitations as to when a court may award permanent periodic alimony, particularly for marriages of short or moderate duration.

The factors the court considers when determining the type and amount of the alimony award include, but are not limited to:

The parties’ prior standard of living.
Length of the marriage.
Age and physical and emotional condition of both spouses.
Each spouse’s financial resources and income-producing capacity of the assets they receive.
The time necessary to acquire sufficient education or training to find appropriate employment.
The services rendered in homemaking, child-rearing, and the education and career-building of the other spouse.
The court may consider any other factor necessary to do equity and justice between the spouses.

You have the right to obtain information about your spouse’s income and assets through the use of discovery procedures. Discovery includes the exchange of documents and answers to written or oral questions.

TAX CONSIDERATIONS

There are important tax considerations in any dissolution of marriage, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. Know the tax consequences of your settlement agreement before finalizing your dissolution of marriage. It may be too late after the signing of a marital settlement agreement or entry of a final judgment to correct mistakes that have been made. You may want to obtain the services of an accountant in conjunction with your attorney to become better informed about this part of the dissolution process.

CHILD SUPPORT

You and your spouse each have a responsibility to financially support your children in accordance with your income and their needs. Child support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or payment of medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches age 18, marries, is emancipated, joins the armed forces or dies.

Some of the issues concerning child support that must be considered include:

The amount of support.
The method of payment.
Ways to ensure payments are made.
When child support may be increased or decreased.
Who claims the dependency deduction for tax purposes.
Other questions may need to be answered, depending on the circumstances of your case. Guidelines for the amount of support apply to all cases and are based on the income of the parents and the number of children, with adjustments for substantial overnight contact.

If you have a problem receiving support payments from your spouse or former spouse, or the time-sharing plan is not being followed, you should bring this matter to the attention of the court. It is not legal to withhold time-sharing or child-support payments because either parent fails to pay court-ordered child support or violates the time-sharing schedule in the parenting plan.

The time sharing plan is now part of the child support computation. Therefore, having the time sharing plan you want will greatly affect the amount of child support you pay or receive.

RESTORATION OF FORMER NAME

Florida law permits the court to restore the former name of a spouse in a Final Judgment of Dissolution of Marriage. A spouse who desires restoration of a name must request it, normally within the original petition or a counter-petition for dissolution of marriage. The court can restore the spouse only to the name from immediately prior to the marriage. A spouse who wishes to change a name to anything other than the prior name normally has to take additional steps.

ATTORNEYS’ FEES AND COSTS

The fees and costs for dissolution of marriage cases vary widely. The more complex and the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney may be able to provide an estimate of the total cost of a dissolution based on the information you provide; however, keep in mind that your attorney has no way to predict the future and that estimates are precisely that – estimates. The final cost of your dissolution of marriage will depend on many variables that are unpredictable.

Your attorney will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.

In a dissolution of marriage, it is illegal for an attorney to work on a contingency fee basis (that is, where the attorney’s fee is based upon a percentage of the amount awarded to the client).

APPEALS

If you feel the judge’s decision was incorrect, you may appeal that decision, provided that certain procedural steps are followed. An appellate court does not, however, often reverse a trial judge’s decision, because the judge has broad discretion in dissolution of marriage cases. If the trial judge makes an error of law or there is an abuse of discretion, the appellate court may reverse the decision. The success of your appeal will be limited if your only reason for appeal is displeasure with the judge’s decision. You must decide quickly whether to appeal the final judgment, because an appeal must be filed within 30 days from the date that the order you are appealing is filed in the lower tribunal or court, or 30 days from the date that an order on a motion tolling the time to appeal is filed.
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Legal content1.1 mixed family – probate
 

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A will is a written direction controlling the disposition of property at death. It must be signed by the decedent and witnesses. The decedent can name beneficiaries whom the decedent wants to receive the decedent’s probate assets. The decedent can also designate a personal representative(Florida’s term for an executor) of his or her choosing.
If the decedent’s will disposes of all the decedent’s probate assets, and designates a personal representative, the will controls over the default provisions. If the decedent did not have a valid will, or if the will fails in some respect, the identities of the persons who will receive the decedent’s probate assets, and who will be selected as the personal representative of the decedent’s estate, will be provided by Florida Law.

Probate is a court-supervised process for identifying and gathering assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries.
Is probate necessary?
Whether or not a Florida probate proceeding is necessary depends on what assets the decedent owned and how they are titled.
Nonprobate assets will pass to others automatically, without the need for probate. There are four basic categories of nonprobate assets:

Trust property – Assets that are titled in the name of a valid living trust are not assets of the estate and do not need to go through probate.
Beneficiary Designations – Assets with payable-on-death or transfer-on-death designations do not go through probate. Examples include life insurance and retirement or other financial accounts with valid beneficiary designations.
Property Owned Jointly with Right of Survivorship or Tenancy by the Entirety – Property that is jointly owned with rights of survivorship or by tenancy by the entirety passes automatically to the surviving owner at the death of the owner.
Life Estate Deeds – Real estate that passes to a remainder beneficiary under a life estate deed is not a probate asset.
If all of the decedent’s assets are nonprobate assets, probate will not be required.

Probate administration applies to probate assets. Probate assets are those assets that the decedent owned in his or her sole name at death, or were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death.
For example:

A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transfer on death to another, or held jointly with rights of survivorship with another, is not a probate asset.
A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or IRA account payable to the decedent’s estate is a probate asset.
Real estate titled in the name of the decedent, or in the names of the decedent and another person as tenants in common is a probate asset (unless it is homestead property), but real estate titled in the name of one or more other persons as joint tenants with right of survivorship is not a probate asset.
Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse to die, but goes automatically to the surviving spouse.
Probate assets include real estate owned by the decedent, bank accounts in the name of the decedent, and life insurance policies that fail to name a beneficiary or are payable to the estate. If the decedent owned any of those, probate will be required.

Do I need a lawyer for probate?
Yes, in almost all cases you will need an estate lawyer for Florida probate. Except for “disposition without administration” (very small estates) and those estates in which the personal representative is the sole beneficiary, Florida law requires the assistance of an attorney. Even when an estate lawyer is not required, formal administration has so many rules and pitfalls that it can be very frustrating for the non-lawyer. Florida’s system is too complex for most Personal Representatives to follow without guidance, and the courts are not set up or staffed to provide probate legal assistance. Additionally, judges require probate documents to meet certain specifications and wording, the forms for which are not available online or even in most libraries. In other words, personal representatives cannot count on the court clerk to assist them and guide them through the process.

Why can’t I just record the will to change the title to my parent’s property?
Title insurance underwriters in Florida generally do not recognize a recorded will as sufficient to transfer title. First, there is no way for those title insurers to know that the recorded will was valid and was the final will of the deceased. Second, there are situations in which the property cannot pass accordingly to the will due to the nature of the property, estate creditors, or other reasons.

Does Florida collect an Estate tax?
At present, no. However, if a Florida estate must file a federal income tax return, it must also file a Florida return even though no tax is owed.

Do I need to personally appear in Florida to probate an estate?
No, not usually for probate. Unless a dispute requires a hearing, neither the personal representative nor the estate attorney will actually go to court in Florida. There is no “reading of the will” like you see on television. Everything is done by mail, email, telephone and facsimile.

Can an estate be administrated with a missing heir?
In many cases, yes an estate can be administered. A missing heir is one who although not on the record title, has inherited a portion of the title due to the death of the owner, but cannot now be located. Florida law has a useful provision under Formal Probate Administration which allows a personal representative to deposit the share of a missing heir into the registry of the court after the property has been sold.

Do all estates go through full probate?
No. Very small estates without real property may qualify for “disposition without administration” and some estates may qualify for summary administration which is a faster and cheaper form of probate administration. Because Florida’s homestead definition allows unlimited value (but not unlimited acreage), some estates with very expensive homestead property, but little else, can qualify for summary administration. Also, if the deceased has been dead for more than 2 years, the estate can be handled through summary administration.

Florida law allows probate lawyers to charge a fee of up to 3% of the estate’s value of estates between $100,000.00 and up.
For estates up to $40,000.00: $1,500.00
For estates between $40,000.00 – $70,000.00: $2,500.00
For estate between $70,000.00 – $100,000.00: $3,000.00

All costs are extra. Additional charges apply for contested matters or extraordinary circumstances. Exempt property, including homestead is not considered as part of the estate value.
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In Florida, when a mother is married and gives birth, the law assumes the child’s father is the mother’s husband. But when the mother is unmarried at the time of the child’s birth, paternity must be established, either voluntarily or through a court order.

If the mother and alleged father agree on who the child’s father is, they can sign a “Voluntary Acknowledgment of Paternity” form. When the parents sign this document, they are acknowledging that the man signing the form is the child’s legal father and swearing under oath that the information is true. The acknowledgement becomes final 60 days after it has been signed. After the 60 days elapses, neither parent can revoke it. If either parent wants to revoke it, he or she must prove in court that there was fraud or extreme force was used to get the parent to sign.

If there is no voluntary acknowledgement, either the mother or the man who believes he is the father may proceed to court to establish paternity. Under Florida law, any of the following persons or agencies can start the court process:

the child’s mother
the man who believes he is the father or who has been identified as the father (also known as the “alleged father”)
the child through a legal representative, or
the Florida Department of Child Support Services.
If a government agency establishes paternity, the agency can only make orders regarding child support. For other orders such as a parenting schedule, the mother or alleged father must go to the court.

Where to start the case

Florida has a system of circuit courts that cover family law cases. Each circuit court covers several counties. The family court judge has the authority to make decisions on paternity cases. The case should be started in the circuit court for the county where either the mother or father resides. The court will order a genetic test for the mother, child and the putative father.

A case can be started before the child’s birth, but the final hearing can’t be held until after the child is born.

Whenever a paternity matter is started in court, the judge may also make orders for:

child support
health insurance for the child
parenting time
decision making authority over the child, and
payment of either party’s attorney’s fees and court costs, such as the cost to start the case in court.
If the judge does not make orders for parenting time or decision making for the child, Florida law assumes that the mother has all of the parenting time and sole decision making authority.

Why Establish Paternity?

If a mother is left to support and raise a child on her own, it stands to reason that a child support order would benefit her and her child. Additionally, the alleged father may have health insurance benefits that are available for the child.

Aside from the benefit of having a father’s involvement, a child may also be entitled to government benefits if the dad is disabled or a veteran. The child would also be entitled to inherit from the father’s estate.

Many men are becoming aware of the importance of a father in a child’s life. If the parents are not on good terms, the alleged father may need court orders for his share of parenting time. The father may want joint decision making authority with the mother. This means that the father and mother have an equal voice in decisions concerning the child’s health care, education and religious upbringing among other major issues. A father cannot obtain theses order without establishing his paternity.
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INTRODUCTION

Buying a home may be the biggest single investment of your lifetime. Your life’s savings may be invested in this one venture.

Thus, it is extremely important that you, the prospective buyer, use the greatest caution in buying a home.

For your protection, consult a lawyer before you sign a purchase contract. The lawyer’s training and experience will help you avoid trouble. Not all lawyers have experience in reviewing real estate contracts, so be sure to ask about the lawyer’s experience.

THE PURCHASE AND SALE AGREEMENT

One of the first documents given to a prospective buyer by a real estate agent/broker is the purchase and sale agreement or contract. Few people realize that this paper is the most important step in purchasing a home — the details of this agreement determine the terms of your purchase. Detrimental provisions in the contract may not be corrected or avoided later in the transaction, so the best time to retain an attorney is before the contract is signed. Before signing, read the agreement carefully. The law usually requires judges to treat you as if you read every word of a document before you signed it, so you should try to read everything carefully before you sign a document. The items you should consider discussing with a lawyer include the following:

Exactly what land, buildings and furnishings are included in your offer? Are the window treatments, fixtures, the stove, outbuildings, refrigerator and the like included? Which items are excluded? It is not always easy to know whether something is being sold with the home. Confirm that the agreement lists the correct property address, legal description and/or parcel identification number that corresponds to that listed on the deed.
What payments are due under the contract?
When can you take possession? If other than the date of closing, is there an Occupancy (pre or post) Agreement? Be sure to clarify whose responsibility it is to insure the property upon taking possession.
Is the seller to furnish you with a good, marketable title? If not, you may be purchasing the property even though other people may have previously asserted claims to all or some of the property, or there may be claims that have been brought by those involved in construction or remodeling of a home.
Which kind of deed should the seller give? Be sure to discuss the difference between a warranty deed and quit claim deed. If you are taking title either as a trustee or as joint tenants with right of survivorship, be sure that you understand your obligations thereunder.
Who selects the escrow agent and who pays for the title insurance for the property in the event the offer is accepted?
Have utilities been installed and paid for? Are the utilities ready to transfer on the day after the closing date?
Should a surveyor be employed to locate the improvements on the property and confirm that there are no encroachments onto or from abutting properties? Who should pay for the cost of the survey? If there are issues that will affect the title, what remedies are listed in the contract?
If a loan is to be obtained from an outside lender, who will pay the loan closing costs? There are usually local customs as to which costs are paid by the buyer or the seller, but it is better to make this explicit in the contract.
Can the buyer cancel the contract and obtain a refund of the deposits if the buyer is denied a loan, and, if so, under what conditions?
If termite damage is found, will the seller have to pay the cost of repairs and treatment? If so, is there a limit?
What are the zoning regulations, or other restrictions, on the use of the property?
What is the time within which the offer to purchase should be accepted or refused? Is the date of such acceptance to be vital to the offer?
If your offer is accepted, what steps should be taken with respect to insuring the improvements to protect you, the prospective buyer, pending the final closing?
Who should be required to sign and accept the offer to make it binding?
Are boundary lines properly specified? If not, will such deviations result in cancellation of the contract?
Are timber, mineral and water rights, if any, properly covered?
Who is responsible for paying property taxes?
What are the remedies if the buyer or seller defaults?
Should the purchase be contingent on any outside matters such as the availability of financing on acceptable terms or the sale of the house that you currently own?
Whose responsibility is it to pay for the real estate broker?
Whose responsibility is it to pay for governmental special assessments that arise before closing? What is payable after closing? What about homeowner or condominium association assessments? Are the appropriate HOA addendums completed? Does the contract allow time for you to review any and all applicable bylaws?
How long should the buyer have to inspect the property?
Does the seller know of any defects? Is there a disclosure form that the lawyer recommends? Has a written disclosure or denial of any defects been completed?
Your lawyer may not be able to answer some of these questions until examining many public records, including court and governmental files.

It is important that your purchase agreement be prepared or reviewed by your own lawyer before you sign to ensure the agreement covers your requirements. Remember that even printed form agreements are negotiable, but this requires knowledgeable and independent professional guidance.

THE TITLE TO REAL ESTATE

A real estate title is a right to partial or whole ownership to land and improvements upon the property. If you can prove your title against all the world and the evidence or proof of ownership is contained in proper public records and if it is for whole ownership, it is a marketable title. A marketable title is free from reasonable doubt. When purchasing a home, you should request a “marketable” title. Your lawyer, after proper investigation, can tell you whether the seller is able to convey such a title to you. No one can advise you without a proper investigation.

WARRANTY DEED

A warranty deed is a conveyance of title plus some warranties or guaranties. The usual guaranties or warranties by the seller are: good title, freedom from encumbrance other than as excepted, possession to the buyer and a promise to defend title.

These guaranties alone are not adequate protection, because they are no better than the present and future financial responsibility of the seller. A warranty from a financially responsible seller is comforting and desirable but is not a substitute for a title examination and title insurance. Title defects have a way of lying dormant for years and perplexing a buyer long after the property has been paid for and the seller has disappeared or died.

NECESSITY FOR TITLE EXAMINATION

A title examination is a study of title evidence from the public records, which can be from an abstract of title or computer records. (An abstract of title is a collection of public records relating to the ownership of a parcel of real estate. In many counties, centralized computer records have replaced abstracts.) Your lawyer examines the applicable title information to determine who owns the lands; defects in or claims against the ownership; and any action needed to secure a good record title.

This may seem to be a simple operation. It is not. It requires interpreting numerous deeds, mortgages, wills, court decrees and other instruments; considering the time sequence of transactions and events affecting the title; and applying laws and court decisions to the various situations disclosed in the applicable title information.

The examination of a title requires a thorough knowledge of many areas of law and even when certain laws went into effect or were amended or repealed. An examination of applicable title information may involve evaluating a variety of problems such as the validity of divorces, the effectiveness of foreclosures, the scope of restrictions, the presence of federal and state tax liens, and the effect of old claims against the land.

Whether examining an old U.S. patent or passing on a deed of recent date, the process of examination is, at every step, the consideration of legal problems. Experience can speed up the work, but attorneys almost daily encounter new situations requiring new legal research.

TITLE INSURANCE

Your lawyer can bolster the title examination by issuing or obtaining for you an owner’s policy of title insurance. In such a policy, the title insurance company contracts with the insured person named in the policy to protect the title as insured against financial loss and the cost of defending the title in court.

But like any insurance policy, the coverage is no greater than as stated in the policy. Any policy can list matters substantially affecting title that are exceptions to the coverage and are not insured. Another type of policy, mortgagee’s or lender’s title insurance, protects only the holder of the mortgage and not the owner. You should not forgo owner’s title insurance coverage because your lender has its own loan policy. In fact, obtaining both the owner’s and lender’s title policies at the same time is not much more expensive than obtaining a single policy.

Your lawyer representing your interest can advise the extent of protection given by your owner’s policy. Even if your attorney does not issue your title policy (as is the practice in certain counties and often when purchasing new residences from developers), your attorney can advise you whether the exceptions from coverage listed in the title insurance commitment will be appropriate under the contract or detrimental to you when they are included in the final title policy. Some attorneys include the policy’s cost in an overall charge for all legal services. Other attorneys separate the charge, with the cost for the policy being based on the real estate purchase price. This price is the maximum amount for which you are insured. There is only a one-time charge for an owner’s policy, and its protection continues long after you sell the property, so you should hold onto the policy indefinitely.

JOINT OWNERSHIP

Buyers often have the title to a home placed in a joint ownership arrangement with special words inserted so that title passes automatically to the survivor when one of the joint owners dies. This arrangement is known as “joint tenancy.” In Florida, when land is owned jointly by husband and wife, it is known as an “estate by entirety.” Owning property in this manner may be a good idea for some, but, again, it may not be good for you. You should determine the income, gift and death tax consequences before having your home placed in joint ownership. Your attorney can advise you regarding this important decision.

Joint ownership occasionally leads to lawsuits over a right of occupancy, the right to the rents if not occupied by all the joint owners, and the duties of the various owners as to payment of mortgages, taxes, and cost of repairs and upkeep. If the joint owners are parent and child, or brothers and sisters, the subsequent marriage of one of them may lead to conflicts and complications.

IS THE BUILDING UNDER CONSTRUCTION?

If the home you are buying is still under construction or has been completed recently, special care is required to make sure that all building costs have been paid by the sellers and that you are fully protected as to the provisions of the Florida Construction Lien Law. You should consult your lawyer for full information as to your rights and responsibilities under this law.

This also may apply when repairs on a house have been made recently or building material was recently delivered.

Failure to protect against construction liens can result in the property’s being subject to liens even though the full contract price was paid. Be sure that the county or municipality has issued a Certificate of Occupancy to ensure that the home has met all statutory requirements.

FINANCING YOUR HOME

Many financing arrangements are available to today’s home buyers: variable rate mortgages, conventional mortgages, government-insured VA and FHA loans, as well as specialized mortgages designed for specific financial institutions. Your attorney can help you determine the most advantageous plan, based on your needs and capabilities to repay, including certain tax advantages appropriate to your personal financial situation.

Regardless of the type mortgage loan, you should be aware of specific terms the lender may require such as:

Prepayment penalties.
Limitation of your right to sell without lender’s consent.
Maintenance of insurance levels.
Tax and insurance escrow payments.
Limitations on your use of the property.
Lender’s right to change interest rates if you assume an existing mortgage.
Lender’s right to change interest rates during term of the loan.
You also should determine if, in the future, you’ll be allowed to borrow additional money secured by the same mortgage. You’ll want to ask your attorney to explain all costs of the loan, including service charges, appraisal fees, survey costs, escrow fees and lender’s attorneys’ fees.

Remember, when you sign a mortgage note, you are ordinarily responsible for the full payment of the total indebtedness. Even if you later sell to someone who agrees to assume payment of the mortgage, your responsibility continues unless the lender releases you.

CLOSING YOUR PURCHASE

Closing a real estate sale is a technical and complex procedure. The careful drafting of papers to carry out the actual intent of the parties is part of the job. Meeting the technical title requirements is another step. The proper signing and acknowledgement of papers is another. Delivery and recording of the papers are usually the last steps.

As a careful buyer, you should insist that your lawyer be present at the closing, checking each detail to assist you in making your purchase the trouble-free ownership to which you are entitled.

As of Oct. 3, 2015, the law has changed so that, instead of the four documents that had been required to comply with Truth In Lending disclosures, there are now two documents, i.e. Closing Disclosure and Loan Estimate. The change in the law requires that all closing documents be prepared three days in advance of the closing date. If there are any required changes to the forms, a new three-day waiting period kicks in. This is important, as it may delay closing to the disadvantage of the buyer or seller.
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FORMAL ADMINISTRATION

Formal Administration is the most common form of probate in Florida. If an estate does not qualify for Summary Administration, or one of the other probate alternatives, it must be formally administered. Even if formal administration is not strictly required, it may still be the best choice of Florida Probate proceedings.
In formal administration there is close court supervision and the collection and distribution of the decedent’s assets. The process unfolds in three stages: opening the estate, administering the estate and closing the estate.

Can be done with or without a will
Is the most common form of Florida probate and involves the appointment of a Personal Representative(s) and issuance of Letters of Administration
Must be used when the decedent has been dead less than 2 years AND the estate’s assets are greater than $75,000.00, excluding primary residence.
Should be used when the estate owes money to creditors and/or there are special circumstances involving heirs.
Should be used if the estate is involved in a lawsuit
SUMMARY ADMINISTRATION

Summary administration is a shortened form of Florida probate and does not require the appointment of a personal representative. Florida summary administration usually requires less time, effort and expense than formal administration.

There are two ways for an estate to qualify for summary administration:

The decedent must be dead for more than two years, OR
The value of the entire estate , less the value of exempt property, must not exceed $75,000.00
However, even if the estate meets one or both of these requirements, summary administration is unavailable if the decedent had a last will and testament that specifically directs formal probate.

Can be done with or without a will.
Can be done if the entire estate is worth less than $75,000.00, excluding the primary residence.
Can be done regardless of the size of the estate if the decedent has been dead for at least two years.
Can be done if the will does not include a provision requiring formal administration
Transfers title to property directly into the names of beneficiaries.
Is usually opened and closed much faster than a formal administration.
Assets of the estate are immediately distributed to beneficiaries and creditors upon the entry of the order admitting estate to probate.
ADMISSION OF FOREIGN WILL TO RECORD

Must involve a will that has been probated in another state
Is the most abbreviated form of probate
Can only be used when the Florida estate assets are real property, usually a second home, condo, or vacant lot.
Is commonly used when property in Florida is being sold and probate was only done in another state. The seller(s) need the title conveyed to them in the public record in Florida so they can legally transfer the ownership to the buyer(s).
Should NOT be used when the estate owes money to creditors or there are special circumstances involving heirs.
Transfers title to real property directly into the names of the beneficiaries.
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Spinal Cord Injuries | Spine Injury Causes
Each year in the United States, about 200,000 people suffer from spinal cord injuries (SCIs).Most injuries are the result of an accident or a tragedy.Specifically, according to the National Spinal Cord Injury Association, the most common causes of SCIs in the United States are:

Motor vehicle accidents. Automobile and motorcycle accidents are the leading cause of spinal cord injuries, accounting for 48 percent of new spinal cord injuries each year.
Falls. Spinal injuries after age 65 are most often caused by a fall. Overall, falls cause 21 percent of spinal cord injuries.
Acts of violence. As many as 15 percent of spine injuries result from violent encounters, often involving gunshot and knife wounds.
Sports and recreation injuries. Athletic activities, such as impact sports and diving in shallow water, cause about 14 percent of spinal cord and back injuries.
Alcohol. Alcohol use is a factor in two percent of spinal cord injuries.
An analysis of the statistics reveals that violence-related SCIs are increasing while SCIs resulting from motor vehicles accidents are decreasing. The leading cause of violent SCIs is gunshot wounds. Moreover, violence is a more likely cause with younger people, while falls are more common among the elderly. It appears that advancements in technology and design have the ability to make cars safer. Yet, there are no similar efforts underway to make a bullet less lethal or disabling.

If you or a loved one suffers a spinal cord injury, it is important to consult with a spinal injury lawyer as soon as you are able. You deserve fair compensation for your spine injuries, and litigation may be required to make sure you have the resources to obtain an adequate recovery.

The time frame within which you are allowed to file a claim (statute of limitations) begins on the date of the injury and may only last a couple of years. Also, near the date of the injury, it is important to conduct an investigation into the cause of the injury, its nature and extent, and to gather and preserve evidence and witness testimony. Experienced spine injury law firm will know the proper steps that need to be taken to secure your rights.

At The Cartwright Law Firm, our spine injury attorneys have a wealth of experience in representing people in personal injury, medical malpractice, and wrongful death cases, with particular knowledge, skill and understanding in dealing with spinal cord injuries.

If you are the victim of a spinal cord injury, contact The Cartwright Law Firm for a free consultation regarding your legal rights. Our spinal cord injury attorneys are knowledgeable in spinal cord injuries and back injuries. Contact us via email or call us at
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Elder abuse

“Abuse” means the willful infliction of injury, unreasonable confinement, intimidation or punishment with resulting physical harm, pain or mental anguish.
“Neglect” means a failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness.

The facility shall take reasonable measures to prevent patient abuse, patient neglect…

The facility shall employ the types and numbers of qualified staff, professional and non-professional, necessary to provide for the health, safety and proper care of patients.

The facility shall provide licensed nursing personnel consistent with applicable occupational regulations and sufficient to accomplish the following:

(1) patient needs assessment;

(2) patient care planning; and

(3) supervisory functions in accordance with the levels of patient care advertised or offered by the facility.

10A NCAC 13D .2305 QUALITY OF CARE
(a) The facility shall provide necessary care and services in accordance with medical orders, the patient’s comprehensive assessment and on-going plan of care.

(b) Acute changes in the patient’s physical, mental or psychosocial status shall be evaluated and reported to the physician or other persons legally authorized to perform medical acts.

(c) The facility shall not utilize any chemical or physical restraints for the purpose of discipline or convenience, and that are not required to treat the patient’s medical condition. An evaluation shall be done to ensure that the least restrictive means of restraint have been initiated on patients requiring restraints.

(d) The facility shall ensure that all patients who are unable to perform activities of daily living receive the necessary assistance to maintain good grooming, and oral and personal hygiene. The facility shall ensure appropriate measures are taken to restore the patient’s ability to bathe, dress, groom, transfer and ambulate, toilet and eat.

(e) The facility shall ensure measures are taken to prevent the formation of pressure sores and to promote healing of existing pressure sores. The facility shall ensure that patients with limited mobility receive appropriate care to promote comfort and maintain skin integrity.

(f) The facility shall ensure that in dwelling catheters are not used unless the patient’s clinical condition necessitates their use. The facility shall ensure incontinent patients receive appropriate treatment to prevent infections and to regain continence to the degree possible.

(g) The facility shall ensure that patients with limited range of motion, or who are at risk for loss of range of motion, receive treatment services to prevent development of contractures or deformities, and to obtain and maintain their optimal level of functioning.

(h) The facility shall ensure that patients who are unable to feed themselves receive the appropriate assistance, retraining and assistive devices when needed.

(i) The facility shall ensure that enteral feeding tubes are used only when the patient’s condition indicates the use of an enteral feeding tube is unavoidable.

(j) The facility shall ensure that patients fed by enteral feeding tubes receive the proper treatment to avoid aspiration pneumonia, metabolic and gastrointestinal problems, and to restore the patient to the highest practicable level of normal feeding function. The facility shall ensure appropriate care and services are provided to address needs related to hydration and nutrition.

(k) The facility shall ensure that patients requiring special respiratory care receive appropriate services.

(l) The facility shall ensure that patients are assisted to utilize personal visual lenses, hearing aids and dentures.

NCGS ยง 131E-117 Declaration of patient’s rights.
All facilities shall treat their patients in accordance with the provisions of this Part. Every patient shall have the following rights:

(1) To be treated with consideration, respect, and full recognition of personal dignity and individuality;

(2) To receive care, treatment and services which are adequate, appropriate, and in compliance with relevant federal and State statutes and rules;

(3) To receive at the time of admission and during the stay, a written statement of the services provided by the facility, including those required to be offered on an as-needed basis, and of related charges. Charges for services not covered under Medicare or Medicaid shall be specified. Upon receiving this statement, the patient shall sign a written receipt which must be on file in the facility and available for inspection;

(4) To have on file in the patient’s record a written or verbal order of the attending physician containing any information as the attending physician deems appropriate or necessary, together with the proposed schedule of medical treatment. The patient shall give prior informed consent to participation in experimental research. Written evidence of compliance with this subdivision, including signed acknowledgements by the patient, shall be retained by the facility in the patient’s file;

(5) To receive respect and privacy in the patient’s medical care program. Case discussion, consultation, examination, and treatment shall remain confidential and shall be conducted discreetly. Personal and medical records shall be confidential and the written consent of the patient shall be obtained for their release to any individual, other than family members, except as needed in case of the patient’s transfer to another health care institution or as required by law or third party payment contract;

(6) To be free from mental and physical abuse and, except in emergencies, to be free from chemical and physical restraints unless authorized for a specified period of time by a physician according to clear and indicated medical need; and

(7) To receive from the administrator or staff of the facility a reasonable response to all requests.
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Construction defects
The attorneys at Suzuki Wuori, LLP have substantial experience handling construction defect matters throughout San Diego County. We are committed to providing personal attention and effective legal representation to your unique construction defect issue, whether you are a developer, builder, subcontractor, or homeowner. We handle cases related to all types of construction defect matters including:

Structural defects
Roofing defects
Plumbing issues
Electrical issues
Window failures
Slab or foundation issues
Stucco defects
Developers – Builders – Subcontractors
If a construction defect claim is filed against you, our La Mesa attorneys are prepared to efficiently resolve it for you. We will evaluate the claim and advise you on your options to settle or go to trial. Often, construction defect matters can be favorably settled through mediation without the potential exposure of trial. Mediation can result in both time and money savings for you. Our construction defect attorneys have represented developers in numerous mediations with favorable outcomes.

You should also be aware that you can tender the defense of the construction defect claim to your insurance carrier. This should be done as soon as possible after a claim has been filed against you. We can help you with this process.

Additionally, Suzuki Wuori, LLP is also knowledgeable in the areas of contract and business disputes and can assist you with these issues, should they arise.

Homeowners
Our San Diego construction defect attorneys understand how important a person’s home is to them. Many construction issues including contract disputes and defects can occur during or after completion of your home. If a dispute or defect should occur, homeowners should be aware that there are time limits which may bar them from seeking relief. It is important for homeowners to consult with an attorney regarding these time limits. Our La Mesa construction defect attorneys can evaluate your unique situation and advise you on this issue. We can also advise you on whether trial or mediation may result in the best outcome for you.

Contact Our La Mesa Lawyers today for a Free Initial Consultation
To schedule an appointment with one of our San Diego County lawyers, please call 619-567-4443 or complete our online contact form. We provide services to clients in La Mesa, El Cajon, Santee, Tierrasanta, Lemon Grove, La Presa, National City, Spring Valley, and all of San Diego County.
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Probate

What happens to a person’s assets when he or she dies? Typically, his or her assets will be distributed through a probate procedure unless there is a surviving spouse and the estate consists entirely of community property. Property held in joint tenancy with another person and property transferred by gift before death or placed in a living trust is also not subject to probate.

At Suzuki Wuori, LLP, in La Mesa, our probate lawyers have extensive experience assisting clients in estate administration. We will review your situation and determine if probate is necessary to distribute your deceased loved one’s assets. If probate is necessary, we will represent your interests, helping to ensure the assets are distributed according to the will, or according to California law if a will was not created. Contact our probate law firm today to schedule a consultation with one of our attorneys.

Probate With a Will vs. Probate Without a Will
If probate is necessary and a person dies with a will (testate), the executor of the will opens a probate. The court then decides if the will is valid. If it is determined that the will is valid, the named executor will undertake many tasks such as:

Gathering of assets
Protecting and managing the assets
Valuing the assets
Paying debts and taxes
Distributing the remaining assets to the beneficiaries named in the will
Keeping accurate records for accounting to the court
If a person dies without a will (intestate), a probate may also be opened and the court will appoint an administrator. The administrator will have the same responsibilities as an executor. After all your debts have been paid, your assets will then be distributed to your surviving relatives according to California laws of succession. If you have no surviving relatives, your assets may escheat to the state.

The Reality of Probate
The probate process is a time-consuming and often confusing process. Additionally, the decedent’s assets and the distribution of those assets will become public record since probate is a formal court process. A probate typically takes nine to 11 months to be completed. Even in the most routine probates, the law requires a minimum four-month wait after the Notice to Creditors has been issued before any action can be taken to distribute or close the estate. If you have certain individuals who you wish to provide for within a shorter period of time after your death, probate may frustrate your desires and you may wish to create an estate plan during your life to allow probate to be avoided.

Additionally, probate is an expensive procedure with both attorney and executor/administrator fees being set by statute. The fees are:

4 percent of the first $100,000

3 percent of the next $100,000

2 percent of the next $800,000

1 percent of the next $9,000,000

Half of 1 percent of the next $15,000,000
Reasonable fee to be determined by the court for any value in excess of $25,000,000
An estate valued at $500,000, for example, would result in attorney’s fees of $13,000 and executor/administrator fees of $13,000. If you do not want your loved ones to be faced with the expense and time involved with the probate process, it may be avoided through appropriate estate planning before your death.

Alternatives to Probate
Thankfully, there are alternatives to probate for some clients. Under some circumstances, summary proceedings (which are faster and less complex than full probate proceedings) may be available to deal with a deceased person’s assets. Examples of these summary proceedings include:

Petition for Succession to Real Property
If the gross value of the estate is under $100,000, a Petition to Determine Succession to Real Property can be filed. This petition is filed 40 days after the date of death by all persons who succeed to the property (are entitled to inherit) in the county of residence or where the property is located. These types of matters are set for hearing.

Small Estate Affidavit
If the estate consists solely of personal property (for example, a bank account) and the gross value is under $100,000, an Affidavit (or Declaration) for Collection or Transfer of Personal Property under Probate Code §13100 can be used to distribute the estate. This is not a court procedure. It must be at least 40 days since the date of death. This cannot be used to transfer real property (land or buildings). All persons entitled to receive assets must sign the affidavit and the signatures must be notarized. For more information, see Probate Code §13100.

If the estate consists of real property worth $50,000 or less, the assets can be dealt with under an Affidavit re Real Property of Small Value. The affidavit may be filed six months after death in the county of residence. If the decedent was a non-resident of California, the affidavit may be filed in the county where the property is located. This is filed with the court but no court hearing is set.

How Can Suzuki Wuori, LLP Help You?
Our probate attorneys can assist you in determining if a full probate is necessary for your particular situation or if a summary proceeding may be appropriate. If a full probate proceeding is necessary, our attorneys will guide you through the process every step of the way. This includes assisting with filing the petition for probate of will and for letters testamentary, if an executor was named in the will, or letters of administration, if an executor was not named in the will. Our attorneys also assist clients with small estate procedures and summary proceedings when a full probate is not required.

It is important to address your specific circumstances and desires with a qualified attorney to determine what type of probate proceeding is best suited to your situation. To schedule an appointment with one of our San Diego County probate lawyers, please call 619-567-4443 or e-mail our California law firm today.
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IF YOU HAVE RECEIVED A LETTER FROM THE IRS OR A REVENUE OFFICER HAS LEFT A CARD ON YOUR DOOR – SHOULD YOU HANDLE IT YOURSELF, OR HIRE AN ATTORNEY?

It is possible for many ordinary situations that arise with the IRS to be handled by the taxpayer and his or her tax preparer. The biggest exceptions to this are: 1) when the IRS makes a demand that the taxpayer disagrees with and/or cannot comply with; 2) IRS criminal investigations, and 3) audit of tax return(s). The reality is that many people do not want to deal with the IRS under any circumstances and often either self-prepared their tax return,do not have a good relationship with their tax preparer, or for whatever reason do not want their tax preparer to be involved for a multitude of different reasons.

If you fall into the category of people who do not want to contact the IRS yourself and want representation please call our office to speak with an experienced tax attorney. We do not charge for consultations.

The benefits of contacting our firm versus any of the other National Organizations that advertise on the radio, internet, television are several. As a small firm we have an advantage over the large organizations because we provide individual attention to our clients and actually do the work we are hired to do. As licensed Attorneys we can discuss options that your CPA or tax preparer cannot such as when bankruptcy is an option, or when the matter goes to Appeals or Tax Court we have years of experience in litigation and fighting for our clients in Court. Lastly, as attorneys the confidentiality and attorney client privilege provides our clients with added protection.

People ask me all the time if they need an Attorney, CPA or EA when dealing with the IRS. My answer is the same as when people ask if they should hire an attorney to represent them in court. Anyone can represent themselves in court. They must know in advance that they are going up against opponents with legal education, training, and have years of courtroom experience. Also, the self-represented individual will be held to the same standard as a professional for presentation of their case in Court. Can a person representing themselves settle a lawsuit? Yes, but probably not as beneficial of a settlement as having an experienced advocate on their side. Can they win at trial? Possibly. But, again why go through the stress and risk to assets, future income and in criminal cases persona liberty.

While a taxpayer can represent themself in dealing with the IRS he or she must understand that IRS employees are well trained and often have years of experience in this area. In almost all instances the IRS employee you speak with will have any tentative agreement approved by a supervisor. There is no such level of assurance with an unrepresented taxpayer that they are receiving an acceptable resolution.

There are taxpayers with a sufficient background and aptitude in negotiation who can educate themselves through reading online and studying the IRS publications and manuals who can obtain a satisfactory result when dealing with some IRS issues. However, most people do not have the time or interest in obtaining the knowledge necessary to adequately handle the issues they are experiencing with the IRS. Anyone who has called the IRS customer service before knows how difficult it can be to get an issue resolved over the telephone. It is not uncommon to be placed on hold for 30-40 minutes and to be handed off from one agent to another. Often times deadlines are provided over the telephone for follow up calls to provide further information. Then another round of calls is needed to get to the next step.

The amount of money that it costs to hire an attorney in most instances is saved in not having to spend the time and effort needed to get a satisfactory resolution of an IRS problem over multiple telephone calls and preparation of required financial forms that the IRS is going to require.

COMMON LETTERS AND NOTICES FROM THE IRS AND WHAT THEY MEAN

For guidance, here are some common letters and notices issued by the IRS and some information either from the IRS website or other observations from experience in representing taxpayers.

CP14
–Request for Payment. Starts the collection process by notifying you that the IRS believes you owe more money with an explanation as to why. When there is an amount due there will be penalties and interest assessed as well.
 
CP90/CP297
–Final notice of intent to levy and opportunity to request a Collection Due Process Hearing (CDP) – This letter gives 30 days to resolve whatever tax issue by paying or entering into an installment agreement; or file for CDP. This notice is commonly seen before levy on Social Security Benefits (or CP 91 – commonly 15% is taken of benefits but can be up to 85%), but also can be used before levy against bank accounts, wages, or property of he taxpayer.

CP161
–Notice of Unpaid Balance or Amount Due

CP501/502
–Request for Payment of Amount due and beginning of series of letters leading to levy and seizure of property. Upon receipt of each letter in this series there is 30 days to respond. Upon the last letter if there is no response or inadequate response there is a final notice before levying begins.

CP503
– Immediate action required. Next in line of letters. A tax amount is assessed and owed. This is the time to contact the IRS with a plan as to how you wish to resolve your tax debt issues.

CP504
– Urgent Notice that the IRS intends to levy and seize assets. Last before the final notice of intent to levy is sent. By this time it is important to be developing a plan as to how you want to address your tax debt issues. There is a telephone number in the upper right hand corner of the letter to call to speak with a representative from the Automated Collection Service (ACS).

CP515
–Request for tax return. If you have not filed, this letter is sent as the first courtesy notice that no return has been processed. This is a good time to contact a tax professional to get started in preparing and filing your return(s).

CP518
–Overdue tax return – Final notice before the statutory notice of deficiency stage of having returns prepared under 6020(b) by the IRS without your input.

CP521
– Installment agreement payment notice that you are in an agreement and have a payment that is due.

CP523
– Notice of Default of Installment Agreement. You have either missed payments, or have incurred further tax assessments by filing a later return without full payment. The IRS needed to be contacted to determine if the installment agreement can be reinstate or modified to address the further assessment.

CP566
– Contact letter re: you have been selected for a correspondence audit. Review where information can be provided to the auditor by fax and mail.

668W and 668A
– These are levies. 668W is a continuing levy on wages. 668A is a one time levy against your financial institution or someone who may owe you money. As soon as you become aware of one of these it is time to call the IRS to see if they will release the levy otherwise the employer or financial institution must honor the levy. Have the fax number of payroll or the legal department of the bank handy; if the IRS is willing to release the levy, time is of the essence. The time to work things out is before the money is sent to the IRS.

Letter 1058
–Final notice of intent to levy and your rights to a hearing. This is the letter that the CP500 series culminates in. This is also a letter that a Revenue Officer from the IRS may send at the same time as requesting documentation or a Financial Statement. There is a 30 day period to either resolve the account or file a Collection Appeal. Collection Appeals are only a good idea for the taxpayer if all tax returns and estimates are up to date or can be brought current quickly. If the Appeals Officer finds that the taxpayer is not in compliance the appeal will be denied.

Letter 1085
–30 day notice before the assessment of a Substitute for Return prepared by the IRS pursuant to 6020(b). Generally you do not want the IRS to prepare a return for you. The IRS-prepared return will rarely as accurate as it would be if all your deductions were taken into account, and a 6020(b) return cannot be discharged ever in a Bankruptcy without being paid in full. In the payroll tax context, the IRS may have to estimate the number of employees that were on payroll based upon projections from prior filed taxes.

Letter 1153

–Proposed Assessment of Trust Fund Penalty Assessment – Pertains to Payroll Taxes unpaid by responsible party of a business. There are 60 days to respond. (Sent along with a Form 2751 to sign if in agreement with the assessment).

CP2000
–Proposed Changes to Tax Return. The IRS believes you have made a mistake on a tax return. Either not including income, or challenging a dependent, or deduction. If you do not agree this is your chance to explain why you were right. If you agree with the proposed change sign off and make arrangements to pay the additional amount owed.

Letter 2205 and 3572
–Initial taxpayer contact letters for a field audit. Unlike the CP2000 and CP566 that are dealt with through the mail or fax, the field audit will take place in person. It can be at an IRS location or at the place of business or the home of the taxpayer. There are usually specific areas that are going to be reviewed such as gross receipts, or items of deductions on a Schedule C.

Letter 3219

– Notice of Deficiency. If you have unfiled taxes and the IRS has proposed an assessment, or if after an audit there is a proposed additional amount of assessment, the Stat Notice gives you 90 days to resolve the matter or file a tax court petition sending the matter to tax court for resolution. Upon filing of the tax court petition, the IRS responds and an Appeals Officer is assigned to either resolve the matter or send forward to trial.
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