Gianelli & Associates News Blog
Monday, January 23, 2017
As many can attest, going through a divorce can be a difficult experience and the process can become contentious. Even after the spouses reach a settlement, conflict may continue to arise, particularly when a parent fails to make the required child support payments. In these cases, it may be necessary to take legal action to enforce the child support order.
Child Support at a Glance
While child support determinations may vary state to state, the courts generally consider a number of factors in reaching these decisions, including:
The child's standing of living while the parents were married
The income of each parent
Whether one parent is paying alimony to the other
The health, medical and educational expenses of the child
Child support orders specify the amount that is to be paid and usually require payments to be made on a monthly basis until the child becomes an adult.
Enforcing a Support Order
While both parents are responsible for the financial well-being of their children, the parent who has primary custody will typically be awarded child support. A parent who fails to comply with court ordered child support can be held accountable by the other parent. In order enforce the order, it is necessary to file an "Order to Show Cause" or a similar legal document with the court. This order must also be served on the non-paying parent.
The court will then hold a hearing and the non-paying parent will need to explain why the payments have not been made. In some cases, there may be legitimate reasons, such as a sudden loss of income or an illness or other emergency. If the order was violated without cause, however, the court will move to enforce the order. In these situations, the court has a number of options, such as ordering payments to be automatically deducted from the non-paying parent's paycheck.
If the parent is a repeat offender, the court can also garnish his or her wages, place a lien on real property or even seize bank accounts. A more drastic step, the court may find the non-paying parent to be in contempt of court which could result in a prison sentence and fines. However, courts are generally not inclined to go this far since the parent will then be unable to earn income to comply with the child support order.
In the end, divorcing spouses have a duty to support their children, regardless of the circumstances of the divorce. If you need help enforcing a child support order, you should consult with an experienced family law attorney.
Monday, January 16, 2017
A tax basis is essentially the purchase price of a piece of property. Whenever that property is sold, the seller must pay taxes on the difference between the sale price and the original purchase price. This concept applies to all property, including stocks, bonds, vehicles, mechanical equipment, and real estate. If debts are assumed along with the purchase price, the principal amount of the debt will be included in the basis. The basis can be adjusted downwards when a person deducts depreciation costs on his or her income tax returns, and may be increased for capital investments towards improving the property that are not deducted for income tax purposes. Selling a property that has been held for a long time can carry a serious tax burden because of inflation, particularly when real estate prices have increased.
When an individual receives property as an inheritance, the tax basis is reset to whatever the fair market value is at the time of the transfer of title. This means that the heir would pay significantly less taxes if that property is sold by the beneficiary than if the original owner were to sell it and devise the money to his beneficiaries. Most simple wills provide that all of a testator’s assets are placed into a residual estate to be divided equally among the heirs. This means that an executor must liquidate the assets of the estate and divide the proceeds among the heirs. However, because there is no transfer of title before the property is sold, the heirs are stuck with the grantor’s basis and they lose an opportunity for a sizeable tax break.
A person planning his or her estate may also reset the basis in his or her property by giving it as a gift directly to his or her heirs or by gifting the property to an inter vivos trust. These actions can have their own tax related consequences, or create other unintended problems for the beneficiaries. Only an experienced estate planning attorney can advise you on the most efficient way to pass your assets on to your heirs.
Monday, January 9, 2017
In the contemporary workplace, email is an essential and efficient form of communication. Whether it's used internally among staff members, or for exchanges with vendors and customers, email is a necessary business tool. At the same time, misuse of this technology can expose an organization to legal and reputational risks as well as security breaches. For this reason, it is crucial to put a Read more . . .
Monday, December 26, 2016
The law allows a person preparing a will to have almost complete control over his or her assets after the testator passes on, but there are limits to such power. A person can restrict a property from being sold, or make sure that it is used for a specific purpose. A property can be bequeathed to a family member as long on condition that the person maintains the family business in a specific city, or exercises daily, or places flowers on the deceased's grave every week, or engages in any other behavior the testator desires. This freedom, however, is not without limits. The time limit on this ability is called the rule against perpetuities. The rule is also referred to as the “dead man’s hand” statute.
The rule against perpetuities is complex and rarely utilized. At the time of the passing of the testator, the heirs of the estate are locked in. These heirs are referred to as “lives in being.” For the purposes of this rule, if a child is conceived but not yet born at the time of the testator’s death, it will be considered a life in being. Once the last living heir named in the will passes away, the restrictions on the property will continue in place as the testator desired for 21 years. The idea is that a testator may control his assets for a full generation after his or her death. The rule is notoriously difficult to apply properly. When it does apply, the conditions on the bequest are abandoned and the gift returns to the residual estate.
What makes this rule so confusing is that, when an individual writes a will, he or she may make gifts to potential children or grandchildren. These children and grandchildren, however, may not be born until years later. If a child has been born at the time the decedent passes away, he or she is subject to the restrictions on the bequest during his or her lifetime. If a grandchild is conceived and born after the decedent’s death, however, the child may avoid the restrictions 21 years after the death of the last heir alive at the time of the decedent’s death. There is no way to predict when this might occur. The rule is archaic and easily avoided. A knowledgeable attorney can help a person planning his or her estate set up an equitable trust. Similar to a will, a trust may impose conditions on the use of assets, but is not subject to the rule against perpetuities. There are other advantages to a trust, but one of the most important is avoiding this unpredictable and confusing rule.
Monday, December 19, 2016
The value and success of a business often rests on the ability of the principals involved to make and enforce contracts with third-parties. However, if the person who entered into a particular agreement did not have the “capacity to contract” in the first place, then those contracts may be “voidable.” A contract is “voidable” if it permits the person without legal capacity to either terminate or enforce the agreement. This is meant to ensure that the weaker party does not get taken advantage of due to unequal bargaining power.
Again, contracts become “voidable” at the discretion of the party who does not have the ability to execute an agreement. The “capacity to contract” is an individual’s lawful competence “to enter into a binding contract.” In other words, there is a presumption that certain individuals cannot understand what they are agreeing to. This category typically includes mentally incompetent individuals or minors.
Minors (typically those under the age of 18), do not have the legal power to form a contract. However, if a minor does enter into a contract, he or she usually has the option to cancel while still under the age of 18. If the individual is no longer a minor and has not yet exercised the right to void the contract, the contract may be enforceable after the person has turned 18.
Similarly, a person who is mentally incompetent can either have his or her guardian void the agreement or personally cancel it. Tests for mental fitness at the time a contract is signed vary from state to state. Nevertheless, minors and the mentally disabled may not be permitted to void contracts intended to provide them with necessities, such as clothing, shelter and food.
Persons under the influence of alcohol or drugs do not usually have the same power to void contracts as do minors and the mentally disabled. Typically, intoxication is deemed a “voluntary” act and courts encourage intoxicated individuals to assume accountability for their actions. If an individual was so inebriated as to be unable to appreciate “the nature and consequences of the agreement,” however, the intoxicated party may be able to void the contract. If another person used the intoxicated party’s condition as a means to take advantage of the situation, this can also be used as a loophole for the intoxicated party to void the contract. Anyone attempting to void a contract should consult with a savvy business attorney in order to explore the possibilities of viable options in his or her particular case.
Monday, December 12, 2016
In this computer age, when so many tasks are accomplished via the internet -- including banking, shopping, and important business communications -- it may seem logical to turn to the internet when creating a legal document such as a will . Certainly, there are several websites advertising how easy and inexpensive it is to do this. Nonetheless, most of us know that, while the internet can be a wonderful tool, it also contains a tremendous amount of erroneous, misleading, and even dangerous information.
In most cases, as with so many do-it-yourself projects, creating a will most often ends up being a more efficient, less expensive process if you engage the services of a qualified attorney. Just as most of us are not equipped to do our own plumbing repairs or automotive repairs, most of us do not have the background or experience to create our own legal documents, even with the help of written directions.
Situations that Require an Attorney for Will Creation
In certain cases, the need for an estate planning attorney is inarguable. These include situations in which:
- Your estate is large enough to make estate planning guidance necessary
- You want to disinherit your legal spouse
- You have concerns that someone may contest your will
- You worry that someone will claim your mind wasn't sound at the signing
Mistakes and Omissions
It has always been possible to write a will all by yourself, even before the advent of the typewriter, let alone the computer. Such a document, however, is unlikely to deal with the complexities of modern life. Many estate planning attorneys have seen, and often been asked to repair, wills that have mistakes or significant omissions. These experts have also become aware of situations in which the survivors of the deceased wind up in court, spending thousands of dollars to contest ambiguously worded or incomplete wills. Without legal guidance from a competent estate planning attorney, creating a "boxtop" will can result in tremendous financial and emotional risk.
Evidence that Online Wills Are Not Foolproof
Evidence that many other complications can arise when an individual creates a will using generalized online directions can be found in the following facts:
- Each state has its own rules (e.g. requiring differing numbers of disinterested party signatures)
- Even uncontested wills can remain in probate if not executed in an exacting fashion
- Estate planning attorneys find legal software programs inadequate
- Even legal websites themselves recommend bringing in an attorney in all but the very simplest cases
- Some legal websites provide inexpensive monthly legal consultations with attorneys to protect their client and themselves
Areas that Frequently Cause Problems
Self-constructed wills often become problematic when the testator:
- Names an executor who has no financial or legal knowledge
- Leaves a bequest to a pet (legally, you must leave the bequest to an appointed caretaker)
- Puts conditions on payouts to an that are difficult, or impossible, to enforce
- Makes unusual end-of-life decisions or puts living will information into the will
- Designates guardians for children, but neglects to name successor guardians
- Neglects to coordinate beneficiary designations where, for example, the will and insurance policy designations contradict one another
- Leaves funeral instructions into the will since the document will most likely not be read until after the funeral has taken place
- Leaves inexact or ambiguous instructions dealing with blended families
- Neglects to mention small items in the will which, though of small financial value, are meaningful to loved ones and may cause contention
In order to ensure that you leave your assets in the hands of those you wish, and to avoid leaving your loved ones with bitter disputes and expensive probate costs, it is always wise to consult with an experienced estate planning attorney when making a will. In this area, as in so many others, it is best, and safest, to make use of those with expertise in the field.
Monday, November 28, 2016
There is a widespread misconception that verbal contracts are unenforceable. Nevertheless, a contract made orally with another party, without embodying the particular terms in a signed writing, can still be valid and binding. Even so, any disagreement concerning the deal may pose multiple problems for both parties. In order for the court to give a verbal contract legal effect, the terms of the deal will have to be demonstrated. This could involve pricey litigation and an extensive discovery process. Therefore, it is advisable to have an attorney draft any contractual agreement.
Moreover, according to the Statute of Frauds, there are certain contracts that must be in writing in order to be legally binding. This may include contracts for the sale of land or real estate, surety agreements, in which one person guarantees to take over another's contractual obligations, and service agreements that take over one year to complete. Other agreements that must be written to be legally binding may include agreements “made in the consideration of marriage,” or those made for the sale of goods valued at $500 or more. If the requirements for contractual validity are not met, either party runs the risk of the other party rescinding the contract by declaring it void.
The Statute of Frauds not only aims to prevent deception or fraud; it requires precise terms to be set in writing for a contract to be valid. The Statute of Frauds typically requires the document to include a description of the “subject matter” of the agreement, the main stipulations to the deal, and the signatures of the parties. Nevertheless, these requirements may vary with the sale of goods under the Uniform Commercial Code, where a signature by the “party to be charged” may be sufficient. For a sale of goods, the terms typically should include the price and quantity of the goods.
Sometimes, if the contract is unenforceable under the Statute of Frauds, it may be saved if one party suffered by relying on the contract and if the injured party can prove this reliance in court. Likewise, an exception may exist if “specially manufactured goods” were provided under the contract or one party “partially performed” what was required by the agreement. The outcome may also vary if two merchants were the contracting parties. Seek advice from a licensed business law and contract attorney to evaluate agreements and determine whether they are legally enforceable.
Monday, November 21, 2016
Adopting a child from a foreign country can be an incredible experience for both the parent and the child but it is not an easy process. Even after the exhausting process of finding the right child, the adopting parents must work with officials from the U.S. Citizenship and Immigration Services Department in order to bring the child home to the U.S.
There are three different ways for U.S. citizens to adopt a child internationally. They are Hague, Orphan (Non-Hague) and adopting an immediate relative. The Hague process applies to children who are in countries that are a party to the Hague Intercountry Adoption Convention. The Orphan process applies to children who are in countries that are not a party to the Hague Convention.
In Hague adoptions, parents will typically choose an Adoption Service Provider that is Hague Accredited. An Adoption Service Provider will assist the parents with the adoption. Parents will next complete a home study from an authorized provider. Before adopting a child, parents need to apply to U.S. Citizenship and Immigration Services (USCIS). Once USCIS approves the application, parents will work with an Adoption Service Provider to get a placement. Once a placement is found, the parents will file a petition with USCIS, and will then adopt the child. Upon adoption, the parents will obtain an immigrant visa for the child, and will transport the child to the U.S.
Non-Hague adoptions, or Orphan adoptions, apply to foreign-born children who either don’t have any parents, or have one parent who’s unable to care for the child and signed a document to that effect. As part of the case, the USCIS will investigate to verify that particular child is an orphan before allowing the adoption. Much of the rest of the adoption is similar to a Hague adoption – the adopting parents will need a home study and a visa for the adoptive child.
Monday, November 7, 2016
If your estate plan and related documents are properly and carefully drafted, it is highly unlikely that the court will disregard your wishes and award the excluded child an inheritance. As unlikely as it may be, there are certain situations where this child could end up receiving an inheritance depending upon a variety of factors.
To understand how a disinherited child could benefit, you must understand how assets pass after death. How a particular asset passes at death depends upon the type of asset and how it is titled. For example, a jointly titled asset will pass to the surviving joint owner regardless of what a will or a trust says. So, in the unlikely event that the disinherited child was a joint owner, that child would still inherit the asset because of how it was titled.
Similarly, if you left that disinherited child as a named beneficiary on a life insurance policy or retirement plan asset, such as an IRA or 401k, that child would still receive some of the benefits as the named beneficiary even if your will stated they were to take nothing. Another way such a "disinherited" child might receive a benefit is if all other named beneficiaries died before you.
So, assume you have three children and you wish to disinherit one of them and you state you want all of your assets to go to the other two, and if they are not alive, then to their descendants. If those other two children die before you and do not have any descendants, there may be a provision that in such a case your "heirs at law" are to take your entire estate and that would include the child you intended to disinherit.
If you wish to disinherit a child, all of these issues can be addressed with proper and careful drafting by a qualified estate planning lawyer.
Monday, October 31, 2016
“You can never be too cautious.”
“An ounce of prevention is better than a pound of cure.”
These and other common sayings may make it seem like a smart business move to conduct criminal background checks of all job applicants and exclude any applicant who has ever been arrested for, or convicted of, any crime in the past. Why hire a person with a criminal record when, surely, there are applicants out there with unblemished records?
In reality, however, the issue of job applicant criminal background checks is a complicated one. It is not illegal to conduct a criminal background check, but employers must be careful about how they use the results of these background checks to exclude applicants.
In some cases, it may be illegal discrimination for an employer to exclude an applicant because of the results of the background check. For example, in January 2012, the U.S. Equal Employment Opportunity Commission (EEOC) reached a settlement with Pepsi Beverages regarding this precise issue. Pepsi had a policy and practice of excluding job applicants who had arrest records but no convictions, as well as excluding applicants with convictions for minor crimes along with applicants convicted of more serious offenses. The EEOC’s investigation determined that Pepsi’s policy unfairly excluded a higher number of African Americans from the job applicant pool. Pepsi reached a settlement with the EEOC – making financial payments to affected job applicants, offering jobs to qualified applicants who had previously been excluded, and changing its background check policy.
The EEOC’s guidance on criminal background checks for job applicants is as follows: Generally, any criterion used to screen job applicants must be relevant to the applicant’s ability to perform the job in question.
An arrest record is rarely, if ever, relevant because under American law, everyone is innocent until proven guilty.
Convictions for minor crimes may also be irrelevant and should not be considered. As an example, a conviction for underage drinking may not be relevant, unless the person is applying for a bartender job where he or she has the responsibility to check identification.
Convictions in the distant past are rarely, if ever, relevant to an applicant’s ability to perform a job unless the conviction relates to the job in question. For example, a conviction 20 years ago for writing one bad check may not be relevant to a job as a lifeguard. However, if the job is for a position in a bank, then the conviction may still be relevant to the applicant’s ability to perform that job honestly.
Business owners and hiring managers are to be credited for wanting their workplaces to be safe and staffed by honest, trustworthy employees. It is important, however, for employers to make sure that it uses the results of job applicant background checks in a fair manner to prevent illegal discrimination.
Monday, October 17, 2016
Inventors have a right to protect their inventions through the United States Patent and Trademark Office (USPTO). With the creation of a device come a bundle of property rights issued by the United States Government. A patent prevents all “others from making, using, or selling the invention in the United States.” The patent may survive for varying periods of time, depending on what type of patent is applied for and issued. Typically, protection does not activate until the patent is legally granted.
Not all creations can be patented. Only a device that is “new, non-obvious and useful” may qualify for a “utility patent.” Abstract or theoretical concepts or ideas may not be protected by means of a patent. Likewise, an invention is not patentable if it has been “publically disclosed.” In order to determine this, patent searches should be conducted prior to filing an application. These searches may be very complex and an attorney’s instruction is advised.
Creations that cannot be approved under patent law may still be protectable through another method, such as trademark or copyright law. An intellectual property (IP) attorney can help advise clients about making the appropriate distinctions. An IP attorney is available not only to educate clients on the various application requirements for all types of intellectual property, but is prepared to provide provisional or non-provisional applications for patents. A non-provisional application establishes the filing date of the patent application, beginning the application process. A provisional application only establishes the filing date and automatically expires after one year.
If there is more than one person involved in the creation of an invention, the partners may need to file an application as "joint inventors." Unfortunately, there are often disputes concerning which individual actually created the invention; sometime both parties claim to be the "sole inventor." Usually, after thoroughly analyzing all the facts, the attorney(s) can determine whether one or both inventors have the right to file the patent or whether they should file jointly.
There are several fees involved in obtaining a patent license, including filing, issuance, and maintenance fees. An experienced IP attorney can inform clients of the timetable they will be responsible for, and clarify when various terms, such as "patent pending" or "patent applied for" are supposed to be used to keep the public updated regarding where the inventor is in the patent application process.
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Based in Modesto, CA Gianelli & Associates, PLC serves clients throughout California.