New Point Law Firm | Legal Resources

Jack Harper joins New Point Law Firm as associate attorney

Thu, 11 Sep 2025 17:03:12 GMT

Jack Harper is an Ames native and Gilbert High School and Iowa State University graduate

New Point Law Firm is pleased to announce that Jack E. Harper has joined the firm as an Associate Attorney. Jack plans to focus his practice on transactional law, mainly wills, trusts, estate planning, probate, business law, real estate transactions, contracts, and zoning, planning and land use. He also plans to provide criminal defense as well as assist with guardianships and conservatorships for court-appointed matters.

Jack graduated from Drake Law School in the Spring of 2025 with a J.D. and an M.B.A. He gained valuable experience working as a Legal Assistant for Conterra Ag Capital in West Des Moines during the Summer of 2023. He also enjoyed working for Iowa Legal Aid in Des Moines as a legal assistant in the Summer of 2024. In the Spring of 2025, Jack spent a semester with Drake Entrepreneurial and Transactional Legal Clinic at Drake Law practicing as a student attorney under the guidance of Professor Nick Roby. Jack was also a proud member of the Drake Journal of Agricultural Law , acting as its managing editor during the 2024-2025 school year. All these experiences improved his skills in client interaction and advocacy, legal research, and working with other attorneys.

Jack is the first member of his family to be born in Iowa, and he grew up loving the City of Ames and its community, eventually graduating from Gilbert High School. Not wanting to leave the area, he attended Iowa State University from which he graduated in the Spring of 2022 with a B.A. in Political Science. He has always had an interest in law, policy, and history. Jack is now excited to be back in Ames and practicing in and assisting the community he has grown up in at New Point Law Firm.

Talbot retires from practice after 35 years of service

Mon, 07 Jul 2025 20:34:06 GMT

Bill Talbot took down his shingle on the 30th of June, 2025, after 35 years in the practice of law. He had been working of counsel with New Point Law Firm, plc, since its inception in July 2023 and previously with the Newbrough Law Firm, LLP.

A native of Audubon, Iowa, Bill was raised in the livestock nutrition and equipment industry and spent his years before college working at the family horse production facility and feed supplement factory. After graduation from the University of Northern Iowa with a degree in Business Management, Bill managed several agricultural product distribution centers and a farmer/rancher agricultural products sales force for nearly 15 years.

Bill then set out on his legal career. He attended and Drake University Law School in Des Moines. He graduated with honors.

Bill began practicing law with the Parker Law Firm in Nevada, Iowa, in 1990. He joined the Newbrough Law Firm, as a partner in 2004.

Throughout his career, Bill had a varied practice. He counseled clients in the areas of business, corporate, and commercial law; civil and commercial trials and appeals; contract law; estate planning; and trust and estate administration. In 2001, after being trained by both the Mediation Training & Consultation Institute of Ann Arbor Michigan and the American Academy of ADR Attorneys, Bill added mediation to his practice. He is particularly well-known for mediating corporate and family farm disputes, and large asset dissolutions.

Associate Attorney

Wed, 18 Sep 2024 17:02:12 GMT

Associate Attorney

New Point Law Firm, plc, is seeking an attorney, preferably with a minimum of three years’ experience.

Qualifications

Excellent research, writing, organization, and communication skills are required. The ideal candidate would also possess a strong work ethic, ability to exercise independent judgment, and dedication to serving their community. Iowa bar admission is required.

How to apply

Send a resume and a cover letter to:

New Point Law Firm, plc
Attn: Nicole S. Facio, HR Manager
P.O. Box 847
Ames, IA 50010

or by email to:

nfacio@newpointlawfirm.com

All applications will be handled confidentially. New Point Law Firm is an equal opportunity employer.

Posted 09/17/2024.

Open until filled.

Feilmeyer recognized with service award

Thu, 01 Aug 2024 21:33:59 GMT

Frank Feilmeyer has been following his sons around to swim meets since about 2010. He became a volunteer USA Swimming official a few years later and has volunteered his time and talents as a referee, starter, and stroke and turn judge for the club and for USA Swimming. He joined the board of directors of Ames Cyclone Aquatics Club in 2016. At the team banquet in July 2024, Head Coach Michael Peterson presented Frank with a plaque recognizing the more than ten years of service to the club. The club is a 501(c) nonprofit corporation that provides training to competitive age group and masters level swimmers and also operates the Cyclone Swim School, which is a learn-to-swim program.

Since Frank joined the board of directors, the club has been able to secure a long-term strategic partnership with the Ames Community School District for use of the Dan Flannery Natatorium. The club also raised several hundred thousand dollars to endow the club and to secure the use of the school facility. The club also aquired and now operates Cyclone Swim School.

Frank is one of the founding members of New Point Law Firm, plc.

Nicole Facio recognized for service

flf@newpointlawfirm.com — Wed, 22 May 2024 15:34:40 GMT

Receives William Abraham Award

Image Credit: Peggy Michelotti / Legal Aid Society of Story County

New Point Law Firm founding member Nicole Facio is the 2024 recipient of the William Abraham Award given in May. Nicole joined the board of directors of the Legal Aid Society of Story County in 2011. Nicole also served as president of the organization.

Nicole is credited by the board and staff with constant support to the staff, offering mentorship, providing hands-on help whenever needed, and providing generous financial support.

Executive Director Peggy Michelotti posted after the ceremony: "With her stellar legal skills and unwavering commitment to service, she's made a lasting impact in our community. As a seasoned family and juvenile law practitioner, Nicole has been a guiding light for families navigating tough legal waters. Her leadership as a former president of our Board of Directors has been instrumental in steering us toward success."

The Legal Aid Society of Story County provides much needed legal services to Story County residents needing assistance in civil matters at reduced or no cost. Legal aid is a nonprofit corporation supported by donations from the Story County Bar Association, United Way, Story County ASSET, City of Ames, ISU Government of the Student Body, and Iowa Supreme Court IOLTA. ( Show your financial support here. )

The attorneys and staff of New Point Law Firm know the feeling. Congratulations, Nicole!

Angie Thomas elected to Iowa Academy of Trial Lawyers

Wed, 22 May 2024 15:11:25 GMT

Inducted as a fellow

Image Credit: Iowa Association for Justice.

Angie Thomas, a founding New Point Law Firm member, was inducted as a fellow of the Iowa Academy of Trial Lawyers in March 2024. Angie also has been a member of the Iowa Association of Justice, has served many years on its board, and is currently serving as its president.

The Iowa Academy of Trial Lawyers is a private association of Iowa practicing trial lawyers for which membership is by invitation only upon the sponsorship and recommendation from another member of the Academy and upon unanimous approval of its board of governors. The Academy is limited to 250 members.

Academy fellows are selected among practicing lawyers who have devoted their careers to trial practice and are deemed by their colleagues to have displayed both great skill and the highest integrity.

Congratulations to Angie Thomas!

Angie Thomas installed as president of Iowa Association for Justice

Sat, 11 Nov 2023 02:20:23 GMT

Becomes fifth female to lead IAJ in IAJ's 51st year

Angie Thomas took office as the 51st president of the Iowa Association for Justice on November 10, 2023, at the organization's annual convention. Angie becomes the fifth woman to lead IAJ.

IAJ is the premier organization for Iowa's trial lawyers, and IAJ is a lead advocate for protecting the rights of citizens.

Lawyer Q&A: Family Law

Mon, 17 Jul 2023 05:51:07 GMT

Q: What is a marriage?

A: A marriage is a relationship between two individuals that is usually recognized by civil authority and/or bound by the religious beliefs of the participants. Each state has varying laws that effect the responsibilities and benefits of a marriage for these individuals.

Q: What is a divorce?

A: A divorce, or dissolution of marriage, is the ending of a marriage prior to the death of either spouse. A divorce must be certified by a court of law as a legal action is required to dissolve the prior legal act of marriage. Each state defines the types of divorce, depending on reasons and length of time before divorce papers may be filed.

Q: What is common law marriage?

A: Common law marriage is a marriage that results from the actions of a couple even though they have not obtained a marriage license or fulfilled the requirements of the state’s statutory marriage laws. This means the couple has lived together for a period of time and have presented themselves as husband and wife. However, not all states recognize common law marriages.

Q: What is child support?

A: Child support is court-ordered funds to be paid by one parent to the custodial parent of a minor child after a divorce or separation.

Q: How is child support calculated?

A: Every state has child support guidelines that apply a certain percentage of the non-custodial parent’s income.

Q: How can I enforce the court order when my ex-spouse is delinquent on child support payments?

A: You can bring a contempt of court proceeding and ask for a wage garnishment. Unfortunately, you may not legally withhold visitation rights if you are not receiving child support.

Q: What is contempt of court?

A: Contempt of court is when a person willfully and deliberately violates a court order without a legally sufficient excuse.

Q: What is child custody?

A: Child custody is the court’s determination of which parent, relative or other adult should have physical and/or legal control and responsibility for a minor child/children (under 18 years of age).

Q: What is a paternity test (DNA)?

A: It is a genetic test, performed to determine if a man is the biological father of a certain child. This test is generally 99.9% accurate.

Q: What are visitation rights?

A: If one parent has custody, the other parent has the right to have visitation with his child on a regular basis. Others, such as grandparents, may seek legal visitation under certain circumstances. The amount of time awarded for these rights may be determined by the child’s age as well as other conditions.

Lawyer Q&A: Personal Injury

Mon, 17 Jul 2023 05:20:09 GMT

Q: What's the first thing I should do if I am injured?

A: The main thing to do is to write down details, including names, addresses, phone numbers and, in case of automobile accidents, insurance names and policy numbers from others involved, witnesses and police officers, including their report numbers. Keep records of where and how the accident happened, including the weather and time of day. Take pictures of the injuries, property damage, and several views where the accident happened. A crucial task will be to find a competent Personal Injury attorney.

Q: Do I have a winnable Personal Injury case?

A: Frankly, the best one to answer this question is a Personal Injury attorney. If you have suffered injuries due to another person’s actions or failure to act (such as not cleaning up a spill or not restraining an animal) you may have a Personal Injury case. If someone has attacked your reputation (verbally or in writing), and/or caused emotional distress, you may have a Personal Injury case. You must be able to prove your case, and a Personal Injury Attorney may be able to help you determine if your case is worth pursuing.

Q: How long do I have to file a lawsuit?

A: The statutes of limitations vary by state. These determine the amount of time allotted to file a Personal Injury lawsuit. The importance of contacting a competent Personal Injury attorney that has experience with your type of case as soon as possible after an injury or accident cannot be stressed enough. Missing the deadline my cause your claim to be dismissed.

Q: What should I bring when I meet my lawyer?

A: The more information you are able to give your Personal Injury attorney the better. Even if you do not have everything (such as medical bills), providing as much as possible will assist the Personal Injury lawyer to determine the validity of your claim in a courtroom and what additional information is needed. Anything you currently have that is relevant to your case, including police reports, photographs, newspaper articles regarding the incident, eyewitness information, details about the conditions surrounding the accident or injury, and any medical reports should be presented at your first meeting. If the other party’s insurance has contacted you, their contact information and any information they provided will assist your Personal Injury lawyer. Keep notes on everything-even small items may be important.

Q: What award may I receive from my Personal Injury lawsuit?

A: If the lawsuit is successful, a party or parties are liable for the damages from the injury and their liability insurance company must pay what the courts have determined. These items may include many variables related to the accident such as medical expenses, income lost, permanent physical disability or disfigurement, emotional damages (such as stress, embarrassment, depression and other conditions), damage to property, and possibly the loss of family, social and educational experiences and more. Damages, money intended to restore the victim to the position they were in before the injury, is not considered taxable income by the federal or state governments.

Q: What is "negligence?"

A: How an “ordinary reasonable person” should act in each situation in the case of a Personal Injury is the critical issue in Personal Injury cases. Negligent persons fail, for example, in driving safely, repairing property, restraining animals, or placing warnings. A jury often determines if “ordinary reasonable person" standards are met after presentation of evidence and argument at trial.

Q: Is there any other possibility for Personal Injury liability if negligence can not be proven?

A: Yes, there are cases where persons or companies may be "strictly liable" even if they have not acted with wrongful intent or acted negligently. In these cases, injuries may occur from accidents relating to defective or unpredictably dangerous products. Another instance is when the liable party participates in various actions, such as storing or using explosives and/or other dangerous substances, or by keeping dangerous animals. In these cases, responsible parties can be held strictly liable for harm caused to others due to such activities. Strict liability is imposed on those conducting such activities because the activities pose an undue risk of harm. This means that anyone responsible in conducting these activities does so at their own risk because they are liable if someone is harmed, making them accountable.

Q: How will the person who caused my injury be punished?

A: Defendants in civil actions, such as Personal Injury, are not fined nor do they receive jail terms as punishment in civil court. Those types of punishment are determined in criminal court. Punitive damages may be awarded by juries and courts that are designed to punish defendants who have intentionally harmed or behaved recklessly. Punitive damages are awarded to discourage such defendants from repeating their offenses in the future.

Q: What if death occurs before the Personal Injury lawsuit is completed?

A: In any case, if the person filing the Personal Injury lawsuit dies, the case may continue. Their Personal Injury attorney will assist in making the appropriate changes to complete the suit, as often it is the heirs or executor of the deceased’s estate that receive the amount awarded through a wrongful death action.

Twelve Areas of Family Law

Mon, 17 Jul 2023 05:20:04 GMT

Marriage

A marriage is a relationship between or among individuals, usually recognized by civil authority and/or bound by the religious beliefs of the participants. Because marriage often has the dual nature of a binding legal contract plus a moral promise, it is often difficult to characterize.

Traditional

In some form or another, marriage is found in virtually every society. Marriage has traditionally been understood as a monogamous union. In some parts of today’s world, polygamy is a common form of marriage. However, all states prohibit a marriage to more than one person. Marriage is also prohibited between close family members. A few of the more common restrictions are:

A marriage between blood related siblings, parent and child, and aunt or uncle and niece and nephew.
Generally the minimum age requirement for marriage is 18 years old, although some states permit marriage at a younger age if parents consent to the marriage.
One or both parties must meet state residency requirements.

It is mandatory in most states that a formal ceremony of some kind be performed with witnesses and a religious or licensed official.

Federal and state laws give married couples many benefits. Such benefits include:

Decision making powers about your spouse in case of disability
Claimant rights for loss of consortium (loss of interest that one spouse is entitled to receive from the other, including companionship, cooperation, affection, aid and sexual relations)
Certain tax advantages
Inheritance rights under state intestate succession laws
Federal benefit rights including disability, unemployment, social security, veterans’ pension and public assistance benefits
Creating a marital estate fund
Receive family rates on insurance
Avoid deportation of a non-citizen spouse

In some instances, many couples find it advantageous to consult an attorney about entering into a premarital or prenuptial agreement. This is useful as it allows them to work through financial issues and the potential disagreements that can be created prior to marriage.

Common Law

Common law marriage is a marriage that results from the actions of a couple despite the fact that they have not obtained a marriage license or fulfilled the requirements of a state’s statutory marriage laws. Typically this means that a couple has lived together for a significant period of time, while having an agreement to be married and presenting themselves to the public as husband and wife. No state stipulates the exact time period, but generally a ten year old relationship is required. The evidence to prove the necessary intent includes such things as sharing the same last name, filing of joint tax returns and referring to each other as husband or wife.

Not every state permits common law marriages. As a result of the laws of different states, actions which can result in common law marriage in one state may not provide any legal rights or protections in another.

There are few states that recognize common law marriages:

Alabama
Colorado
Iowa
Kansas
Montana
Oklahoma
Rhode Island
South Carolina
Texas
Utah
District of Columbia

States permitting certain common law marriages:

Georgia (if the elements were met prior to January 1, 1997)
Idaho (if the elements were met prior to January 1, 1996)
New Hampshire (for inheritance only)
Ohio (if the elements were met prior to October 10, 1991)
Pennsylvania (if the elements were met prior to January 1, 2005)

In states which recognize common law marriage, once the requirements are satisfied, the marriage is treated in the exact same manner as any other marriage. Therefore, a valid common law marriage must typically be ended through a formal divorce process.

Premarital/Prenuptial Agreement

A Premarital/Prenuptial Agreement (referred to as “prenup” for short) is a written contract between two people drawn up before marriage. It generally details any and all property either party owns (along with any debts) and what each person’s property rights will be after marriage and sometimes whether alimony will be paid if the couple should divorce. Also, a prenuptial agreement may state what is to be done about property distribution should one of them die.

The Uniform Premarital Agreement Act provides for division of property due to separation, divorce and death, alimony, wills, ownership of property as well as management and control, and life insurance benefits.

The states that have adopted the Uniform Premarital Agreement Act are:

• Arizona

• Illinois

• Nevada

• South Dakota

• Arkansas

• Indiana

• New Jersey

• Texas

• California

• Iowa

• New Mexico

• Virginia

• Colorado

• Kansas

• North Carolina

• Wisconsin

• Connecticut

• Maine

• North Dakota

• Dist. of Columbia

• Delaware

• Montana

• Oregon

• Hawaii

• Nebraska

• Rhode Island

Divorce

A divorce is the termination of a marriage by legal action, requiring a petition or complaint for divorce (or dissolution in some states) by one party. Some states still require at least a minimal showing of fault (grounds), but no-fault divorce is now the rule in which incompatibility is sufficient to grant a divorce. The major issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney’s fees. Only state courts have jurisdiction over divorces so the petitioner/complainant can only file in the state in which he/she has been a resident for a period of time. In many states, the time period from original filing for divorce and final judgment (or decree) takes several months to allow for a chance to reconcile.

From the legalities, divorce gives both parties the legal right to marry another. A divorce also legally divides the couple’s assets and debts as well as determines the care and custody of their children. Every state approaches these issues differently although most states use similar standards.

The most relevant issues to be decided during divorce proceedings are alimony or spousal support, division of marital assets, and, if children are involved, child custody, visitation and child support.

Grounds

The grounds for divorce are set regulations in each state that specify under what circumstances can either party be granted a divorce. A fault divorce is a divorce that takes place on the grounds that one party can be considered at fault. In several states, the couple must live apart for several months before they are granted a divorce.

Following is a brief explanation of a few of the many reasons for one party to be granted a fault divorce.

Adultery is a consensual sexual relation when one of the participants is legally married to another person. In some states it is still a crime and is grounds for divorce for the spouse of the married adulterer.
Extreme cruelty is an archaic requirement to show infliction of physical and/or mental abuse by one of the parties to his/her spouse to support a judgment of divorce or an unequal division of the couple’s marital assets. In some states, evidence of cruelty may result in division of property favoring the suffering spouse.
Infertility is the inability to conceive a child or carry a pregnancy to full term. If infertility of the other party was not discussed prior to marriage, this can be grounds for divorce.
Abandonment means willfully leaving one’s spouse and/or children, intending not to return, without the abandoned spouse’s consent.

Fault or No-Fault

A fault divorce traditionally requires one spouse to prove that the other spouse was legally at fault to obtain a divorce. The “innocent” spouse is then granted a divorce from the “guilty” spouse. Today, many states still allow a spouse to allege fault in obtaining a divorce. The traditional fault grounds for divorce are adultery, abandonment (desertion), cruelty, imprisonment, physical incapacity and incurable insanity. Some courts consider fault in determining the amount of spousal support.

A no-fault divorce is a divorce in which the dissolution of a marriage does not require fault of either party to be shown. Either party may request, and receive, the dissolution of the marriage, despite the objection of the other party.

The following list of states allows no-fault divorce as the sole grounds for divorce:

• Arizona

• Florida

• Michigan

• Washington

• California

• Hawaii

• Minnesota

• Wisconsin

• Colorado

• Indiana

• Montana

• Deleware

• Iowa

• Nebraska

• District of Columbia

• Kentucky

• Oregon

The following list of states indicates those that have added no-fault to traditional divorce:

• Alabama

• Maine

• New York

South Dakota

• Alaska

• Maryland

• North Dakota

Tennessee

• Arkansas

• Massachusetts

• Ohio

Texas

• Connecticut

• Mississippi

• Oklahoma

Utah

• Georgia

• Missouri

•Pennsylvania

•Vermont

• Idaho

• New Hampshire

•Rhode Island

•Virginia

• Illinois

• New Jersey

• South Carolina

• West Virginia

• Louisiana

• New Mexico

The following list represents states that consider incompatibility as grounds for divorce:

• Alabama

• Mississippi

• New Mexico

• Wyoming

• Alaska

• Montana

• Ohio

• Kansas

• Nevada

• Oklahoma

Many states have a “waiting period” before a couple can file for divorce. This is to enable them to possibly reconcile. The following list shows the prerequisite for couples residing apart and filing for divorce:

• Alabama - 2 years

• Nevada - 1 year

• Tennessee - 2 years

• Arkansas - 18 months

• New Hampshire - 2 years

• Texas - 3 years

• Connecticut - 18 months

• New Jersey - 18 months

• Utah - 3 years

• Hawaii - 2 years

• New York - 1 year

• Vermont - 6 months

• Illinois - 2 years

• North Carolina - 1 year

• Virginia - 1 year

• Louisiana - 6 months

• Ohio - 1 year

• West Virginia - 1 year

• Maryland - 2 years

• Pennsylvania - 2 years

• District of Columbia - 1 year

• Missouri - 1-2 years

• Rhode Island - 3 years

• Montana - 180 days

• South Carolina - 1 year

Annulment

An annulment differs from a divorce as it is a judicial statement that there was never a marriage. An annulment means that the individuals were never united in marriage as husband and wife. Currently, most states have annulment statutes. An annulment declares that a marriage, which appears to be valid, is actually invalid. There are two kinds of invalid marriages. A void marriage is one that was invalid from the very beginning. The major grounds for a void marriage are incest, bigamy and lack of consent. A voidable marriage is one that can be declared illegal but continues as valid until an annulment is sought.

Fraud is the most common ground for annulment. The misrepresentation, whether by lies or concealment of the truth, must encompass something directly pertinent to the marriage, such as religion, children or sex, which society considers the foundation of a relationship.

Physical or emotional conditions may also be elements for an annulment, especially if they interfere with sexual relations or procreation. Other health conditions providing grounds for an annulment include, but not limited to, alcoholism, incurable insanity and epilepsy.

Alienation of Affection

Alienation of affection is a tort claim for willful or malicious interference in a marriage by a third party without excuse or justification. There are only nine states that consider alienation of affection a viable cause for action:

• Hawaii

• Missouri

• North Carolina

• Illinois

• New Hampshire

• South Dakota

• Mississippi

• New Mexico

• Utah

There are five states that have judicially eliminated alienation of affection:

• Idaho

• Kentucky

• Washington

• Iowa

• South Carolina

The following states have statutorily eliminated alienation of affection:

• Alabama

• Indiana

• Nevada

• Texas

• Arizona

• Kansas

• New Jersey

• Vermont

• Arkansas

• Maine

• New York

• Virginia

• California

• Maryland

• North Dakota

• West Virginia

• Colorado

• Massachusetts

• Oklahoma

• Wisconsin

• Connecticut

• Michigan

• Oregon

• Wyoming

• Delaware

• Minnesota

• Pennsylvania

• Dist. of Columbia

• Florida

• Montana

• Rhode Island

• Georgia

• Nebraska

• Tennessee

Currently, Alaska does not have case law or statutes that clearly address this issue. Louisiana has never recognized alienation as a pliable cause for action and Ohio does not allow (by statute) monetary recovery for alienation of affection. Recently, North Carolina has extended the time frame in which one spouse can file an action for alienation of affection.

Alimony, Spousal Support and Maintenance

Alimony, also known as spousal support or maintenance, is an obligation of financial support paid by one spouse to the other.

There are basically three types of alimony. Permanent alimony is an allowance for support and maintenance (for example clothing, shelter, food or other necessities) of a spouse. A marriage of over ten years is often a candidate for permanent alimony. If permanent alimony is requested, it must be proven that there is a need for support and the other spouse has adequate means and the ability to provide for part or all of the need.

Permanent alimony is generally reserved for long-term marriages. Reimbursement alimony is intended for spouses who have supported their partners through years of advanced schooling. Rehabilitative alimony is designed for spouses in shorter marriages who need some assistance reestablishing themselves in the job market and who have a specific vocational plan.

The factors the courts consider differ on a state to state basis. Some of the possible factors that weigh on the amount and length of the support are:

Length of marriage
Time separated while still married
Age of the parties at the time of divorce
Income of the parties
Future financial prospects of the parties
Health of the parties
Fault in the marital breakdown

If the parties fail to agree on the terms of their divorce, the court will make a fair determination based on the legal argument as well as the testimony submitted by both parties. Modification can occur at any future date depending on a change of circumstances by either party on appropriate notice to the other party as well as application to the court. The courts are generally reluctant to modify an existing agreement unless there are compelling reasons.

Alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income. In order to qualify as alimony, the payments must meet the following five criteria:

1. Payment is in cash.
2. Payment is received by a divorce or separation instrument.
3. The instrument does not specify that the payments are not for alimony.
4. The payer and the payee are not members of the same household when payments are made.
5. There is no liability to make payments for any period after the death or remarriage of the recipient.

Division of Property

Division of property between spouses is a difficult issue to resolve during a divorce. There are two different systems in place that each state uses for property division: Community Property or Equitable Distribution. No matter which system is used, each state has its own guidelines for dividing marital property. You should seek legal advice from one of our experienced attorneys as this is a complicated area of family law.

Community Property

Community property is a system of property division in which all property is divided equally, regardless of whose name it is in, that was acquired during the duration of the marriage, not including inheritances and gifts in some jurisdictions.

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In these states, property that was acquired prior to the marriage stays with the party who acquired it. Although some community property states permit equitable distribution where justice is served, rules vary state to state and are filled with exceptions.

Equitable Distribution

In equitable distribution states, all property, whenever or however acquired, regardless of legal title, is subject to equal or unequal division. “Equitable” does not mean equal. Courts strive for a fair division between the parties and take into consideration several factors to make that determination.

There are 16 states in which all property of either spouse is subject to distribution on divorce, in the discretion of the court. These states include:

• Alaska

• Massachusetts

• New Hampshire

• Utah

• Delaware

• Michigan

• North Dakota

• Vermont

• Hawaii

• Mississippi

• Oregon

• Washington

• Kansas

• Montana

• South Dakota

• Wyoming

Adoption

Adoption is the practice in which an adult assumes the role of parent for a child who is not biologically their own and giving him or her all the rights and privileges of one’s own child.

Most laws are designed with the best interests of the child in mind, not the best interests of the adult who intends to adopt. The adoption procedure varies depending on whether the child comes from an agency which handles adoptions or comes from a stranger or relative, along with the age of the child and the adoptive parent or parents.

Adoption law is generally governed under state law. All 50 states have statutes governing adoption.

Public adoption

What you face in a public adoption are children who are wards of the state because their parents could not provide adequate care for them, or neglected or abused them. These children are of all ages and most have been in foster homes for a long period of time. Public adoptions are run by a government funded agency.

Private adoption

Private adoption is a legal method of building a family through adoption without using an adoption agency. The biological parents relinquish their parental rights directly to the adoptive parents. Private adoption is also governed by state laws.

Transracial adoption

A trans-racial adoption places children with an adoptive family of another race. Such adoptions may be through public and private agencies. However, most trans-racial adoptions take place through the public child welfare system.

Intra-national and International adoption

Due to a shortage of healthy, Caucasian infants, potential adoptive white parents started adopting children from other countries. International adoption has grown in popularity as more families recognize the need to provide homes for waiting children. International adoption is a wonderful option for people who have been trying unsuccessfully to adopt in the United States. Each country has policies regarding the age, income level and marital status of prospective parents.

Single parent adoption

As one-parent households become more common, single parent adoption increases. The issue of personal finances and single income families has become less important since adoption subsidies are available nationwide.

Summary of Adoption Procedures

The formal steps involved in adoption are generally the same in all states. Notice of adoption is given to all parties who have a legal interest in the case, except for the child. The parents seeking to adopt must file a petition in court that contains specific information such as the adoptive parents names as well as the child’s, the child’s gender and age, and the names of the natural parents, if known. Written consent of the agency or the natural parents must be attached with the petition.

A hearing is then held so the court may review the qualifications of the potential parents and either grant or deny the petition. Most states require a period of probation during which time the child resides with the adoptive parents and a state agency monitors the development of such relationship. If the relationship is working well for all parties concerned, the agency will recommend to the court that a permanent decree of adoption be issued. However, if the agency feels the relationship in unsatisfactory, the child is either returned to his or her previous home or is taken care of by the state.

Following the adoption proceedings, a certificate of adoption is issued for the adopted child which replaces the original birth certificate. The certificate of adoption lists the new family name, the date and place of the child’s birth along with ages of the adoptive parents at the time the child was born. The old birth certificate is sealed away and may only be opened with a court order. If you are considering adoption, please seek the advice of one of our experienced family law attorneys.

Child Custody and Visitation

Child custody and visitation is one of the most difficult aspects of getting divorced, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue and sometimes the court decides for them. Courts have frequently given mothers physical custody in the past and have given fathers visitation. However, in today’s society, courts have begun to realize that in some instances it in the best interest of the children to live with their father.

In order for a court to grant custody, the court must find that the custodian is a fit and proper person and that custody with that person is in the best interest of the children.

Physical custody is the right and obligation of a parent to have his child live with him. Legal custody is the right and obligation to make decisions about a child’s upbringing, including school and medical care. Many states usually have parents sharing in legal custody of a child.

Divorcing parents face many options pertaining to the division of these rights and responsibilities. Some solutions are:

Sole custody: An arrangement in which one parent has both physical and legal custody of a child and the other parent has visitation.
Split custody: This pertains to a custody arrangement with multiple children involved. One parent will be awarded sole custody of one child while the other parent is awarded sole custody of another child. The courts do not favor this resolution as they are usually reluctant to split up the children.
Joint custody: A n arrangement in which parents who do not reside together share in the upbringing of the children. This can mean joint physical custody where the children spend a significant amount of time with each parent or joint legal custody where the parents share in the decision making pertaining to the children.

If custody is contested, many courts make a decision on a custody arrangement by the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children’s age, what the children’s wishes may be and the purpose for their wish.

Visitation is the right to see a child on a regular basis, generally given to the parent who does not have physical custody of the child. Visitation plans should be specific so as to avoid any possible conflicts and avoid confusion.

Supervised visitation is an alternative used when a child’s safety and well-being require visits with the other parent be supervised by you, another adult or a professional agency.

No visitation is an option used in an extreme situation is which contact with the other parent would be detrimental to the child.

Custody and visitation schedules are always subject to change when circumstances affecting the child’s best interests change significantly. Once the conflict of custody and a visitation schedule is settled, there are certain policies that must be followed in order to modify the arrangement. If custody and visitation were determined through a court, then the parties will have to return to court in order to modify said arrangement. If the agreement was reached through mediation, the couple may have to return to mediation to modify said arrangement.

Ex parte custody refers to motions, hearings or orders granted on the request of and for the sole benefit of one party only. An ex parte motion mat be used in a case where one parent strongly believes a child is in extreme danger. Many jurisdictions require at least an attempt to contact the other party’s attorney of the time and place of an ex pate hearing.

A visitation schedule depends on the child’s age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child’s age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit.

In some instances, a third party seeks visitation with a child, being a step-parent or a grandparent. Laws vary from state to state regarding this issue. Although a grandparent may be a biological grandparent, the court does not always grant visitation. Several factors play a role in the decision making of the court such as:

The grandparent was abusive to their own child;
Interference with ordinary parental decision making; or
Bad-mouthing one or both parents to the child, creating unnecessary conflict.

Seek advice from one of our experienced family law attorneys to assist you with the best interests of both you and your children.

Child Support

Child support is court-ordered funds to be paid by one parent to the custodial parent of a minor child after a divorce or separation. Generally the amount of child support is based on each parents’ income, number and special needs of the children, and the expenses of the custodial parent. Child support may also include health insurance, school tuition or other expenses.

Child support payments are due at a certain time every month. The paying parent can make the child support payments to a child support registry, which will then send the payments to the custodial parent, or can have their wages garnished meaning the child support payments may be withheld from their paycheck.

Child support laws vary from state to state. Depending on the jurisdiction, a custodial parent might legally be required to account for how child support money is spent. In the United States, there are 11 states that demand an accounting from the custodial parent on how child support payments are spent:

• Colorado

• Indiana

• Missouri

• Oregon

• Delaware

• Kansas

• Nebraska

• Washington

• Florida

• Louisiana

• Oklahoma

Most generally, to obtain child support, you must request an order for support from a state family court. The court will use a set of guidelines to set the amount of child support paid if the parties are not in agreement of the amount. There are different worksheets used in the calculation depending on the custodial arrangement. The worksheets are available at the Clerk of Court.

Either parent may seek a change (increase or decrease) in child support at any time if a substantial change in circumstances occurred after the court entered the order. To ask for an increase in child support, the receiving parent must be able to prove to the court that the paying parent’s income has increased, specifically if the current amount of child support does not meet the child’s immediate needs. Child support may also be increased due to such circumstances as medical treatment, therapy or special tutoring.

The paying parent may seek to have child support decreased under such circumstances as a reduction in income, loss of a job or if the custodial parent has an increase in their income. Generally however, courts are disinclined to decrease child support payments. Non-custodial parents who refuse to pay their child support obligation are often termed as dead-beat parents. In 2003, the US Department of Health and Human Services estimated that 68% of child support cases had arrearages.

Although a non-custodial parent is not paying court ordered child support, the custodial parent can not interfere in the visitation schedule. In the same sense, the paying parent (non-custodial) can not stop making child support payments because the custodial parent is not in compliance with court ordered visitation schedule. These are matters that need to be addressed in court and an experienced family law attorney can assist you with these matters.

If a non-custodial parent does not pay court ordered child support, he/she can be held in contempt or prosecuted for failure to support, therefore being taken into custody and remanded to jail. Your driver’s license and other licenses can be suspended. Your tax refunds can be seized. The courts have numerous options to enforce child support orders.

If the biological parents were never married, they both still owe the child financial support. In some cases, the person named as the father denies paternity and requests a DNA test. Once paternity of the child is determined, an order for child support will be entered.

Child support generally terminates when a child turns 18 or 21 (depending on state law), or graduates from high school, or becomes self-supporting.

Family Law is a very complex area of the law, covering many issues, which require careful, sensitive representation to obtain an outcome that is in your best interest. If you or a loved one are dealing with an issue in this area, contact one of our experienced attorneys for assistance with your situation.

Legal FAQs : Motor Vehicle Accidents

Mon, 17 Jul 2023 04:51:42 GMT

Q. Can I be compensated even if the accident was my fault?

A. Compensation if the accident was your fault depends on the laws of your state. In some states, who was at fault in the accident is not considered with regard to compensation. In those states, part or all of your economic damages may be paid by your no-fault insurance policy. In other states, which driver is responsible for the accident is important for compensation. However, you may still be able to recover the costs of your injuries, even if the accident was partially your fault. In that case, you will have to show that the other driver was more responsible for the accident than you were or you may have to reduce the amount of costs you can recover by the amount that you were responsible.

Q. Who can I sue for compensation for my injuries?

A. In some cases, a person who was injured in an accident may be able to sue other people than just the responsible driver. For example, if the responsible driver did not own the car he or she was driving, you may be able to sue the car’s owner. If the responsible driver was drunk, you may be able to sue the person who served him or her alcohol, if that person served the driver even though he or she was obviously drunk. In other cases, you might be able to sue a person who wasn’t involved in the accident, such as an automobile manufacturing company or a construction company, if there was a defect in the vehicle or the road that caused the accident. If the accident involved a semi-truck and the driver violated rules and regulations, you may be able to sue their employer.

Q. How much compensation can I get?

A. The amount of compensation in each case varies widely. Compensation can depend on many variables and the amount can’t be determined without analysis of the injury, medical costs, loss of wages, and the permanency of the injury. There is no set rule for compensation and each case is unique.

Q. Will I have to go to court?

A. Many motor vehicle accident cases do not result in a lawsuit. Most lawsuits are settled without a trial. Settlements avoid the cost and the huge time commitment of a trial and may result in a greater amount of compensation than a trial. However, if the case can’t be settled in a way that is acceptable to both sides, it might be necessary to go to court.

Q. Where will the money to pay for my injuries come from?

A. The responsible driver’s insurance company pays your compensation in many states. If you are in a no-fault insurance system state, your own insurance company may pay some of your compensation. If the responsible party doesn’t have enough insurance cover to compensate you for all of your injuries, your own insurance policy may have coverage for the remainder of your compensation.

Q. When will I get my money?

A. When you get the compensation from your motor vehicle accident case depends on several variables, including the severity of your injury and whether your case goes to court. If you have a serious injury, you want to wait until your doctor has released you or until your doctor can determine your future medical costs related to the accident with reasonable certainty. The time you need to heal from your injuries may be the determining factor in amount of time it takes to settle your claim. Additionally, if you have to go to court, it may take longer to get your money than if you settle your claim.

Q. What do I do if I can’t afford a lawyer?

A. Many law firms will take your personal injury case on a contingency fee basis. This means that your lawyer will get a percentage of the amount that the lawyer collects for you. If you don’t get anything, your lawyer won’t get anything either. However, you are generally responsible for any court costs, filing fees, and witness fees, no matter what the outcome of the case.

Q. Do I have to go to the doctor?

A. If you are injured in a motor vehicle accident, you should go to a doctor, both for your peace of mind and to document your injuries to support your case. Often, a car accident injury isn’t apparent right away. Go to your family doctor, an emergency room, or another trained medical professional as soon as any symptoms appear.

Q. How soon must I file my claim?

A. The time period within which a person has to bring a claim for injuries in a motor vehicle accident varies from state to state. The way that the time period is computed also varies. The time period may also vary within a state depending on the circumstances of the accident, including the injured person’s age, the type of claim, the particular facts of the injury, and when the injury is discovered. It is very important that you know the time limit for your situation, or you may not be able to get any compensation for your injury!

Q. What if the responsible driver or his or her insurance company offers me a check?

A. If you accept a check from the responsible driver or his or her insurance company, you may be barred from getting any additional compensation from the driver or the insurer. You shouldn’t accept a check or sign a release until you have spoken with a lawyer. Generally, your lawyer will advise you to wait until you have finished the treatment for your injury and have been released by you doctor, so that you know that you have enough compensation for all of your medical expenses. An insurance representative may encourage you to settle your case for the lowest amount of compensation possible and not to speak with a lawyer. You should consult with an experienced personal injury lawyer before accepting any payment, signing any release, or settling your claim so that you can make sure that you are receiving fair and full compensation.

What to do after a Motor Vehicle Accident

Mon, 17 Jul 2023 04:48:26 GMT

Immediately after the accident:

Stop! In most states, a person involved in a motor vehicle accident is required not to leave the scene, even if the accident is minor. You should stop and check for injuries or vehicle damage. If you do leave the scene, you may be criminally prosecuted.
Check for injuries. Don’t move an injured person. Call the police and an ambulance, if necessary. If you can’t call, ask someone else to call the police to report the accident. Inform the police of the number of injured people, so that enough emergency personnel report to the scene of the accident. Even if there are no injuries, you should still call the police to get an accident report.
While you wait for the police, if possible, turn on your hazard lights, raise the hood or trunk of your car, or set out road flares to alert other vehicles to proceed carefully around the accident.
Exchange information with the other driver. Get his or her name, address, phone number, drivers license number, license plate number, insurance company, insurance policy number, and insurance agent’s name and telephone number. You should give the other driver the same information about yourself.
If there are any witnesses to the accident, get their identifying information. Ask the police officer who is investigating the accident for his or her business card and the “incident number” so that you can obtain an accident report later.
You may also want to take notes about where and how the accident occurred. Include details such as road conditions, speed limits, traffic signals, weather conditions, lighting, and what other cars were doing at the time of the accident. However, if you have to go to court because of your accident, you may have to share these notes with the other driver in the accident.
Even if you think that the accident may be your fault, don’t say so. The other driver may have been partially responsible or there may have been other variables involved in the accident. An admission of fault may later be used against you.

When the police get to the accident:

Cooperate fully with the police when they get to the accident. Stay at the scene of the accident until the police say that you can leave.
When you speak to the police, only tell them the facts of the accident. Don’t draw any conclusions. Inform the police of any injuries and of any witnesses.
Do not admit that the accident may have been your fault to the police or to any passengers, witnesses, or other drivers. Responsibility for an accident is a matter of the laws of your state and it may not be clear right away.

Soon after the accident:

Go to a doctor as soon as possible. You may not realize the full extent of your injuries right away. If you don’t see a doctor, your treatment may be delayed and minor injuries could become serious. Even a minor ache can be an indication of a serious problem. If there is any chance that you may have been injured in the accident, see a doctor as soon as possible. An insurance company could argue that not going to see a doctor right away meant that your injury didn’t result from the accident, but from some other event. The longer you wait to see a doctor, the harder it will be to connect your injuries to the accident, and the lower your chances for compensation for your injuries. Be sure to tell your doctor about any memory loss, confusion, disorientation, headaches, dizziness, blood or fluid in your ear, ringing in your ear or nausea.
Take pictures of your injuries and the damage to your vehicle. Collect all of your motor vehicle insurance policies for your lawyer to look at. Inform your insurance company of the accident. Talk to a lawyer before filling out any insurance forms, giving recorded statements to any insurance company, or meeting with any representative of any insurance company. It is very important to get legal advice before giving a statement to the other driver’s insurance company. Consult an experienced personal injury lawyer before signing any checks or documents from any insurance company.

Later:

Within a few days after the accident, write down all important information about the accident. Include information such as license numbers, the make, model and year of all vehicles involved. Also include details about the accident, such as the date, time, location, road conditions, traffic signals, and weather conditions. You will be surprised how quickly you may forget these details. If you haven’t spoken with a lawyer yet, contact a personal injury lawyer with the dedication, experience, and ability to help you maximize the amount of your compensation as well as to minimize the amount of frustration, delay, and confusion involved in your claim.
Document all of your injuries and losses. Include medical expenses, transportation costs related to your injuries, expected future medical treatment, lost earnings, future loss of wages, the effect your injury has on your life, and the effect that your injury has on your family. Your lawyer will be able to help you identify all losses that may be connected to your accident.

Theories of Liability

Negligence

Deciding whether a driver was negligent in a motor vehicle accident can be difficult. Sometimes you may feel that another driver, a cyclist, or a pedestrian didn’t use a reasonable amount of care, but you may not know exactly which rule or rules he or she broke. An experienced personal injury lawyer will be able to help you determine if another person was negligent. The attorney will consider many sources, including state traffic laws, police reports and the statements of witnesses to the accident.

Courts consider many variables in making a determination that a driver or another person was negligent. These variables may include:

Failing to follow traffic signs and signals
Disobeying traffic laws
Driving on the wrong side of the road
Neglecting to signal a turn
Driving faster or slower than the posted speed limit
Ignoring traffic or weather conditions
Driving while under the influence of alcohol or other drugs

Recklessness

A driver may also be held responsible for an accident if he or she acted recklessly. Reckless driving is driving unsafely, with “willful and wanton disregard” for the possibility that such action will cause an accident. Reckless drivers intentionally disregard the possible consequences of their actions while driving. For example, a driver may be found reckless if he or she threatens or harasses another person while driving out of “road rage” and causes an accident. Road rage is defined as “an assault with a motor vehicle or other dangerous weapon by the operator or passenger(s) of another motor vehicle or an assault precipitated by an incident that occurred on a roadway.” Criminal charges may also result.

Between 1990 and 1997, almost 13,000 people were injured or killed in car accidents that were caused by aggressive driving, according to studies by the National Highway Traffic Safety Administration (NHTSA) and the American Automobile Association. Another NHTSA study shows that dangerous driving by others, including speeding, is considered a threat by 60 percent of drivers. Approximately 30 percent of these drivers felt that their personal safety, or the safety of their families, was threatened in the past month. Sixty-seven percent of these drivers felt that their safety was threatened during the past year.

Aggressive drivers are those who speed, tailgate, move quickly from lane to lane, flash their headlights excessively and use other dangerous driving techniques. Police officers and traffic safety officers are increasing efforts to catch and punish these aggressive drivers. Aggressive driving is defined by the NHTSA as “a progression of unlawful driving actions,” such as:

Speeding, which can be either going faster than the posted speed limit or driving too fast for current conditions
Improper passing by either failing to signal, using an emergency lane to pass, or passing on the shoulder of the road
Improper or excessive lane changing
Failing to signal a turn
Failure to yield to oncoming traffic

The NHTSA offers the following tips on how to avoid an accident with aggressive drivers:

Get out of their way; do everything in your power to get out of the way of an aggressive driver
Don’t let your pride get the better of you; don’t challenge the aggressive driver by speeding up or trying to hold your place in your travel lane
Avoid eye contact; sometimes looking at an aggressive driver can make them even angrier
Avoid gestures; ignore any rude gestures made towards you and don’t make any gestures yourself
Report seriously aggressive drivers to the police. Remember to pull over to the side of the road, however, if you use a cell phone.

Third Parties

Drunk Drivers

In the past year, over one million people were injured in alcohol-related motor vehicle accidents and every 30 minutes, someone in the US dies in an alcohol-related accident. In a drunk driving accident, the drunk driver will be held responsible for the injuries and damages that he or she caused. In addition, in many states, a bar or a person who hosted a social event or party may also be responsible for these damages if they served alcohol to a patron or guest who was obviously intoxicated. However, holding the bar or host responsible doesn’t relieve the drunk driver from their obligation to pay for the damages. There are many laws covering liability and an experienced personal injury lawyer will use these laws to take into account everyone who may be held liable for your injuries, including people or business that you might not have considered.

Product Manufacturers

Sometimes motor vehicle accidents aren’t caused by either driver involved, but by a defect or malfunction in one of their automobiles. If this type of accident occurs, the manufacturer or the supplier of the automobile or automobile part may be held responsible under the law of “products liability.” Products liability law governs lawsuits brought by consumers against sellers of a product for selling a defective product, which caused an injury to the consumer. Manufacturers that create a defective product, either in the designing, manufacturing or labeling stages, can be held responsible for the injuries caused by the product. Under the law of products liability, it doesn’t matter if manufacturers are negligent or not, they are still responsible for any injuries caused by their defective product.

Automotive Technicians

Another situation in which the drivers in a motor vehicle accident may not be held responsible for the accident is where an auto technicians didn’t correctly repair one of the vehicles and the improper repair caused the accident. If an incorrect repair job caused an accident, the auto mechanic may be found negligent. If the auto mechanic is negligent, the mechanic and his or her employer may be held responsible for the injuries and property damage that the accident caused.

Government Bodies

Variables unrelated to the drivers or vehicles involved in the accident may also contribute to an accident. These factors may include poorly designed or maintained roads, broken traffic signals, road construction, or obstructions that make it difficult to see the road properly, such as signs, bad lighting, trees or utility poles. If one of these variables causes an accident, government bodies that control these things may be held responsible for any damages. However, there are special rules involved in suing the government. An experienced personal injury lawyer will be aware of these rules and will be crucial in enabling you to win your lawsuit.

General Conclusion

No matter what the situation is with your accident, it is crucial to the eventual success of your lawsuit that you take steps to investigate your accident, protect evidence, and obtain the professional opinion of doctors or other experts about any injuries or damages that you have suffered. If you have been in a motor vehicle accident, a personal injury lawyer will be able to assist you with all of these things. An experienced personal injury lawyer will also be able to decide the best method to help you recover compensation for your injuries or property damage.

Injuries and Compensation

In general, a person who is injured in a car accident can be compensated for the actual costs of their medical expenses, property damage, economic damages (such as loss of income), as well as physical and emotional pain and suffering. Lawsuits over motor vehicles accidents can be very complex. In order to get the amount of compensation to which you are entitled, you should speak with a personal injury attorney who is experienced in motor vehicle accidents and compensation.

Damages

In all negligence cases, including car accidents, the injured person may be compensated for the costs of medical and rehabilitative services, physical and mental pain and suffering, lost income (both past and future), permanent injury or impairment and permanent scarring or disfigurement. Other damages that are typical in motor vehicle accident cases include physical property damage, reasonably foreseeable medical expenses, and loss of enjoyment of life. Just because you had a previous injury does not necessarily bar you from being compensated for new injuries. An injured party may still be compensated for worsening or exacerbating an old injury. A good way for a person injured in an accident to document how his or her injuries affect their life is to keep a diary or journal that describes how the injury affects him or her every day as well as his or her immediate family. This diary or journal will be helpful in determining the type and amount of compensation that is appropriate.

Damages for Family Members

In addition to compensation received by the person injured in the car accident, the injured person’s spouse may also be eligible for compensation. A spouse can recover for harm to the marital relationship, known as “loss of consortium.” Generally, both the husband and the wife ask for this type of compensation. Loss of consortium refers to any harm to the martial relationship that was caused by the accident. This harm may include loss of the spouse’s love, companionship, reassurance, affection, consolation, moral support, sexual relationship, ability to have children, as well as the spouse’s physical assistance in operation and maintenance of a home. Loss of consortium does not have to be permanent, it can also be temporary.

Insurance

Generally, the person injured in an accident will be compensated by the insurance company of the driver who was responsible for the accident. If that driver does not have insurance or if he or she does not have enough insurance coverage, the accident victim’s own insurance will cover his or injuries through an uninsured or under-insured motorist clause. Other insurance policies, such as the insurance policies of employers or family members, may supply additional benefits to the injured person. In some states, an injured person may receive some compensation for their injuries, even if the accident was partially his or her fault. If you have been in an accident, a personal injury lawyer experienced in motor vehicle accidents will help you review your insurance policies and determine the amount of compensation to which you are entitled.

Amount of Compensation

In a car accident case, the amount of compensation depends on several variables. Some of those factors are: if you are in a no-fault state, how easy it is to show that the accident was another person’s fault, the type and the severity of the injuries involved, the kind of medical treatment necessary, and the amount of insurance coverage available. Other issues that may be important include: how the accident occurred, how much vehicle damage is involved, the amount of past and future medical expenses, whether there is permanent injury or disfigurement, and how much income was lost as a result of the accident. Each motor vehicle accident case is unique, so it is important to contact an experienced personal injury lawyer to ascertain the amount of compensation in your case.

Injuries and Compensation Conclusion

Horrible injuries can result from a motor vehicle accident. Severe injuries can influence not only the accident victim, but also his or her family. Even relatively small injuries can stress a family, if those injuries require medical care and required time away from work. If you have been injured in a motor vehicle accident, a personal injury lawyer can answer your questions about the compensation you can expect for your injuries. Your lawyer will assist you by pursuing the person or the company that caused your injuries, verifying the amount of insurance coverage available and making sure you get the most compensation possible for your injuries.

Insurance Claims Tips

One thing you should do before you call your agent, is to make sure that you review your insurance policy. Be certain that you understand your policy, especially the “Coverage” and “Exclusion” sections.
As soon as possible after an accident, call your agent. Call as soon as you get home and even before you see a doctor.
Take detailed notes of all conversations with your insurance company. Be sure to get the names, phone numbers, and job titles of everyone you speak with. Get his or her supervisor’s name as well.
Keep receipts of any expenses, such as meals or travel expenses, that you incur in connection with the time spent pursuing your insurance claim from the time of the accident until you reach a final settlement with your insurance company.
Don’t allow any written or recorded statements with your insurance company until you are certain that you understand your insurance policy. The insurance company cannot require you to allow your telephone conversations to be recorded. If you have any questions about recorded statements, contact a lawyer.
Is your accident covered by other insurance policies as well? Many times, more than one policy may cover your claim. Look over your homeowner’s policy, umbrella coverage policies, and any coverage you may have under your credit cards.
If it’s possible, take pictures. Don’t go to extremes, but definitely take pictures of your vehicle damage and injuries.
It’s important to be open and honest with your insurance agent. Even if something is personally embarrassing, it’s better that your insurer knows about it. Withholding facts or information from your insurer may cause them to deny coverage of your claim or invalidate your insurance policy.
There is a difference between replacement coverage and actual cash value. If you have replacement coverage, it may cover the cost of a new vehicle. If you take the actual cash value of your destroyed vehicle instead, you may take a loss. However, if you have replacement coverage, you may be required to actually replace the destroyed vehicle before you can get reimbursed for the cost of replacement.
Be careful when accepting the estimate or appraisal of your losses that is given to you by your insurer. Insurance companies will often try to get you to accept the estimate given by their estimator or contractor. These estimates may be slightly lower than actual repair or replacement costs. Do not sign any releases or waivers of any kind without advice from a lawyer. You may feel pressured to accept an early, insufficient settlement from your insurance company if your financial situation is dire after your accident. However, there may be other damages you could include in your claim that you didn’t think about at first. Consulting with a lawyer will help you make sure that you haven’t forgotten anything. Make sure that you read all the fine print on any payment from an insurance company.
Be aware of the time limits set by your insurance policy. Most policies require a signed proof of loss within a set time period, unless you get a written waiver of this requirement from your insurance company. If your claim has not been adjusted to your satisfaction, most policies only allow you one year to bring a lawsuit. Contact a lawyer immediately if your claim has not been adjusted fairly by eleven months after your accident. If you do not, you might lose your right to sue.
Don’t accept any check that says “final payment” unless you are ready to accept a final payment.
Remember that you have a legal contract with your insurance company. Your insurer has a legal obligation to give you the coverage that was promised to you. Insist on enforcement of that obligation.

Uninsured or Underinsured Drivers

Drivers are required to carry a certain amount of insurance coverage in case of a motor vehicle accident. However, many drivers ignore this requirement, cannot afford insurance, or don’t carry enough insurance. Uninsured motorist coverage is a type of insurance that covers bodily injuries received in an accident with a driver who is legally responsible for the injuries, but who doesn’t have any insurance coverage. Underinsured motorist insurance covers bodily injuries from an accident with a driver who has liability insurance, but that insurance coverage is lower than the injured person’s underinsured motorist insurance coverage. It is important to contact a lawyer experienced in personal injury claims as soon as possible if you have been in an accident with an uninsured or underinsured driver so that you don’t waive any of your legal rights.

Uninsured Drivers

Generally, uninsured motorist insurance covers people injured in an accident with a driver who doesn’t have any insurance. Uninsured motorist insurance may also cover hit-and-run accidents where the other driver isn’t identified. A person who has uninsured motorist insurance and is an accident with an uninsured driver may be able to receive compensation for their injuries from their own insurance company. If you have been in an accident with an uninsured driver, contact an experienced personal injury attorney before you file your insurance claim to make sure that you obtain all of the available compensation.

Underinsured Drivers

Underinsured motorist insurance covers injured persons when the responsible driver does not have enough insurance to fully compensate the injured person for all of his or her injuries. If a person purchases the very minimum amount of insurance coverage required by law, they may be an underinsured driver. If compensation for your injuries is greater than the insurance coverage available from the responsible driver’s insurance policy, you may be able to obtain the difference from your own insurance company.

Collecting Damages

To be compensated under uninsured or underinsured motorist insurance, the injured party has to prove that (1) he or she endured significant injuries and (2) the other driver was responsible for the accident. If the accident was with an underinsured driver, the injured party must also collect the maximum amount allowed under the other driver’s insurance policy before the injured party can collect the rest of the injury compensation from his or her own insurance company.

Uninsured or Underinsured Drivers Conclusion

If you are injured in an accident with a driver who doesn’t have insurance or doesn’t have enough insurance, uninsured or underinsured motorists insurance may cover your injuries. Contact an experienced personal injury lawyer if you have been in an accident and do not settle with the other driver’s insurance company. Some insurance companies are not required to pay under your underinsured motorist insurance policy if you have already settled with the other driver’s insurance company. Your lawyer can provide you with all of the information and assistance you need to get the maximum amount of compensation for your injuries.

No-Fault Insurance

Assignment of responsiblity for compensation for injuries in a car accident depends on the laws of the state where the accident happens. In a no-fault insurance state, neither driver in an accident is considered responsible and each driver submits a claim to his or her own insurance company. Florida, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, New Jersey, New York, Pennsylvania and some other states all have some form of no-fault insurance laws. No-fault insurance is difficult to understand and the law is different in each state that offers this insurance. If you have been in an accident, it is important that you consult a personal injury lawyer with experience in motor vehicle accidents to discuss your state’s laws and how they may affect your right to be compensated for your injuries and vehicle damage.

A No-Fault Insurance System

Any vehicle insurance system that requires all drivers to purchase insurance for their own injuries and limits a driver’s ability to sue another driver is a “no-fault” insurance system. If you are involved in an accident under a no-fault insurance system, it doesn’t matter who was responsible for the accident, your insurance company will compensate you for you injuries, up to your coverage limit. Other drivers involved in the accident will be compensated by their own insurance companies.

Under a one-hundred percent no-fault insurance system, drivers would be completely compensated for injuries by their own insurance companies and no driver could ever sue another driver. Currently, however, no states use a 100% no-fault system. States that use no-fault insurance policy systems use a blend of no-fault systems and standard systems, where the responsible person pays for compensation for injuries. All of these states permit lawsuits in some situations.

The requirements for the type and amount of no-fault insurance vary from state to state. Some states allow an injured person to sue if their injuries are severe, while lawsuits depend on the total dollar amount of the injuries in other states. In many modified no-fault systems, insurance companies compensate the injured person for economic damages to the insurance policy limit, but the injured person can sue for non-economic damages greater than a certain amount. Economic damages are tangible costs, such as medical costs and wages lost because of time away from work.

Non-economic damages are more intangible and may include consequences such as loss of enjoyment of life and serious, permanent scarring or disfigurement. The amount of non-economic damage that must be suffered before an injured person can sue differs from state to state. If you have been in an accident in any no-fault state, it is important to consult with a personal injury lawyer experienced in motor vehicle accidents to examine your state law.

Choice No-Fault

Some states, such as Pennsylvania and New Jersey have a choice no-fault insurance system. Under this system, drivers choose whether they want to be insured under a no-fault plan or whether they want to keep some of the standard responsibility rights to sue under a modified no-fault plan. If drivers choose the no-fault plan, they cannot sue other drivers for non-economic damages, but they also cannot be sued. If drivers choose the modified no-fault plan, then they can sue other drivers, but they can be sued as well. A personal injury lawyer experienced in no-fault insurance motor vehicle accidents can help you sort through these complicated issues, whether or not you are in a no-fault state.

A No-Fault Insurance Policy

If you are insured in a no-fault state, that part of your motor vehicle insurance is usually called Personal Injury Protection. The items covered under a Personal Injury Protection package varies from state to state, but generally, compensation is available for most costs related to an injury, including medical costs, lost wages, loss of services, funeral expenses, and death benefits. Other types of compensation are usually not covered by no-fault insurance, including pain and suffering, emotional distress, and inconvenience. Additionally, medical expenses or lost income above established maximum is usually not covered. Other insurance may be needed to cover physical damage to vehicles.

No-Fault Insurance Conclusion

A one-hundred percent no-fault insurance system may simplify compensation for motor vehicle accident injuries, although no states currently have 100% no-fault systems. Instead, no-fault systems vary greatly from state to state and these systems can be very confusing. An experienced personal injury lawyer can help you make decisions in order to get the appropriate amount of compensation.

Litigation FAQs

Mon, 17 Jul 2023 04:48:24 GMT

Q: What is the procedure in business litigation?

A: The exact procedure depends on the issue under litigation. However, business litigation is governed by the same process as other civil litigation. An attorney should be obtained. Legal processes such as motions, trials, and appeals are also the same.

Q: Are there alternatives to a lawsuit?

A: The Alternative Dispute Resolution (ADR) process is often used in these situations. ADR can involve arbitration or mediation, and is generally cheaper and more efficient than litigation.

Q: How is arbitration different from mediation?

A: Mediation uses a neutral mediator to work with both parties. The mediator facilitates discussion and helps both parties work towards a consensus and a resolution that both sides can accept. In an arbitration, the neutral arbitrator hears both sides of an issue and makes a decision. Generally, the parties in an arbitration are bound to accept the arbitrator’s ruling.

Q: Is an arbitration or mediation always binding?

A: In an arbitration, the answer is usually yes. Often, the parties in an arbitration sign a legally binding agreement to abide by the arbitrator’s decision. If the parties in a mediation are dissatisfied with the result, they can set it aside and proceed to court.

Q: Can I appeal a mediation or arbitration?

A: Mediation is non-binding and the issues in a mediation can therefore be taken to court. This is not an appeal, since mediation and legal proceedings are two different processes. Appeals may occur after an arbitration, if the parties agree in the initial contract to allow one.

Q: What is a class action?

A: In a class action, a large group of plaintiffs is represented by one or two plaintiffs. Generally, a class action proceeds when individual litigation would be inefficient in settling an injury or claim to a large group of people.

Q: Can a business take part in a class action?

A: Yes, if the business has been injured in the same manner as other plaintiffs in the class.

Q: How are legal fees set for a class action?

A: Lawyers are only paid if the plaintiff receives a ruling in their favor. This is called a “contingency fee” arrangement. Class action lawsuits are often extremely expensive to prepare and continue, so a contingency fee arrangement is generally the best fit.

Estate Planning FAQs

Mon, 17 Jul 2023 04:25:34 GMT

Q: What is an estate?

A: Your estate is the total of all property you own or control. Even if you do not own the property in your name, you can possess an ownership interest through a trust, partnership, or joint ownership. Any property or money which becomes available upon death, such as a life insurance payment, is also part of your estate.

Typical portions of an estate include:

Real estate and buildings.
Personal property including cash, furniture, vehicles, stocks, art, etc.
Life insurance and other financial instruments.
Business interests or partnerships.
Debts.
Claims, including personal injury claims.

Q: What is a will?

A: Your will is a legal document that details the organization of your estate upon your death. Wills are enforced in probate court. States have differing legal requirements for the language of wills.

Q: How can I revise my will?

A: Wills remain valid forever, unless a new will is written. You can add a “codicil” to an existing will, to change or add something to it. Codicils must meet the same legal requirements for language as the original will. Generally, a will cannot legally be revised without the use of a codicil.

Q: What is a trust?

A: This is a legal entity which manages an estate or other assets for the benefit of other persons or entities, including corporations. There are many different kinds of trusts.

Q: What is a probate estate?

A: A probate estate is the total of all assets that go through the probate process once their possessor dies. This generally includes all assets in the deceased person’s name and those paid to the estate. It often does not include joint assets, insurance, assets held in trust, or similar assets.

Q: What is the federal estate tax (or death tax)?

A: This is the tax placed on an estate by the federal government. Estates of less than $1.5 million are currently exempt from the estate tax. By 2009, the exemption will rise to $3.5 million. Under current law, the estate tax will not be assessed in 2010, but will be assessed on estates greater than $1 million in 2011.

Q: What is a living trust?

A: Under a living ( or a “revocable inter vivos”) trust, a person transfers ownership of their assets to another entity while alive. The terms of the trust instruct the entity on how to manage the person’s assets before and after death. This allows the person to avoid the probate process, and the possibility of a court-appointed conservatorship upon incapacity.

Q: What is a conservatorship?

A: If you become incapacitated, and a power of attorney has not designated someone to act on your behalf, a court procedure is necessary to assign a legal guardian to you and your estate. The preparation of a power of attorney can avoid the cost and time of a conservatorship process.

Q: Is asset protection legal?

A: Asset protection is legal when it is done legally. You cannot hide your assets or omit income when reporting your taxes. You cannot transfer assets in order to avoid debts. It is important to consult with an attorney when attempting to protect your assets, in order to avoid taking an illegal action.

Q: Do I need an estate attorney when I can write a simple will myself?

A: While it may look simple, the drafting of a will and other estate planning is actually very complex. State laws regarding estate planning change often, and failure to comply can make any changes illegal. An attorney with experience in estate planning can help you to avoid making a costly mistake, and keep you up to date on changes in estate law.

Remember: an improperly prepared will is invalid, and can create court battles and expenses that can eat away at the assets you spent a lifetime assembling. It is much better to safeguard your assets by consulting an attorney before beginning the writing of a will.

Estate Planning Basics

Mon, 17 Jul 2023 04:19:32 GMT

Estate planning, which includes legal documents like wills, trusts, and powers of attorney, is the process of preparing instructions on how to manage your assets after your death. State and federal laws apply to estate planning, and so do taxes. In order to protect your assets, it may be necessary to create legal entities such as limited liability companies (LLCs) or family partnerships. The estate tax and other related issues are a hot political topic, and estate laws change often. It is vital to consult an experienced estate planning attorney, in order to protect your assets and meet the goals of your estate planning process.

Estate planning allows you to decide what will happen to your assets after your death. It allows you and your loved one to save time and legal costs, and avoid financial and administrative hassles. Your estate plan should include two vital documents; a will and a durable power of attorney.

A durable power of attorney is a legal document that allows you to give directions to another person, who can then make legally binding decisions if you are unable to do so yourself.

A will is a legal document which provides instructions on how to deal with your property after your death.

In addition, other legal documents such as a health care proxy, a living will, and a revocable (or “living”) trust can help with decisions should you become incapacitated. A revocable trust can take control of your property before you die, allowing you and your family to avoid probate proceedings.

The basic purpose of estate planning is not simply to distribute property after death, but to reduce inefficiency and taxes throughout the probate process. Under the current federal estate tax law, the amount of federal estate tax depends on the value of the estate and the date on which the person died. In 2007 and 2008, the tax is imposed on estates valued over $2 million. In 2009, the tax is imposed on estates valued over $3.5 million. In 2010, no estate tax in imposed. In 2011, the tax is imposed on estates valued over $1 million.

Many states also impose an inheritance tax. Iowa does have an inheritance tax. Iowa does not impose an inheritance tax on the surviving spouse or on lineal descendents (children and their offspring) or on lineal ascendents (parents, grandparents, etc.). Iowa taxes the shares of other relatives and nonrelatives to varying degrees.

Estate planning is vital to work towards security and peace of mind for yourself and your family. If you need help an any stage in the estate planning process, you should contact a lawyer experienced in estate planning to ensure your needs are met and your estate is protected.

Wills

Your will can do more than simply relay instructions on how to distribute your property after death. You can name relatives, friends, charities, or any other recipient you wish. You can also relay other instructions, such as specifying an executor for your estate or a legal guardian for your children. It is important to ensure that the named guardian has accepted this role, because they are allowed to refuse. The executor is responsible for administering your estate and making sure that your instructions are followed. The executor also represents your estate if it must pass through probate court. Given these responsibilities and the large amount of time they require, you should give careful thought to your choice of executor.

You should never consider your will a final document. Laws and legal interpretations change, as does your personal, financial, and familial situation. You should periodically review and update your will with the help of an attorney. Your will can either be replaced by a new will or revised by drafting an amendment or “codicil”. Wills and codicils must be written using specific legal formulas in order to be valid. You should consult an experienced attorney when drafting or revising a will.

Trusts

A trust is a legal entity which transfers property or assets to a manager or “trustee”. The person who creates the trust, or “trustor”, determines how the trust’s proceeds should be distributed and the trustee manages the property for the beneficiary.

The major types of trust are:

Living Trusts. A trust established during the life of the trustor. It can provide significant tax benefits, and can allow the trustor to avoid estate taxes. A revocable living trust can be changed or ended by the trustor, while an irrevocable trust cannot be ended by the trustor without court action.
Testamentary Trusts. Testamentary trusts take effect upon the death of the trustor, who can make changes to its details at any time before death. A testamentary trust therefore allows the trustor to maintain close control over their property.
QTIP Trusts. A Qualified Terminal Interest Property, or “QTIP”, is a marital trust. It postpones any estate tax until both spouses have died. The delay may mean higher estate taxes, but it allows the surviving spouse to reap the maximum benefit of the assets before his or her death.
Generation Skipping Trust. A generation skipping trust gives a trustor’s assets to their grandchildren while providing income to the trustor’s children. These trusts are complicated to establish, and current law taxes these trusts above a certain monetary limit.

There are many other types of trusts, tailored to specific local laws and individual situations. A trust can be an important part of your estate planning, but the complex nature of these legal entities and the variation between them means that you should consult an experienced attorney before establishing a trust of any kind.

Asset Protection

An important part of estate planning is trying to keep your estate intact to the greatest possible degree. This does not mean the utilization of secretive and unethical means; there are a number of legal and charitable ways to protect your property for retirement or your estate. Asset protection is complex and requires knowledge of a number of legal concentrations. You should consult an experienced attorney before initiating an asset protection plan.

An important tool for this purpose is a family limited partnership, or FLP. An FLP is arranged like a traditional limited partnership, but generally includes family members. The usual arrangement of an FLP makes the parents “general partners” while the children are designated as “limited partners”, who receive a share of profits but no control over the partnership’s decisions.

The General Partners (or parents) are responsible to control the operations of and make financial decisions for the FLP. They can also receive a management fee out of the FLP’s income. Upon formation, the parents own all general partner and limited partner interests, but give shares to their children using the annual gift tax exclusion. Under federal law, the general partners can maintain control over the FLP even if they control only one percent of the FLP’s assets.

An FLP can allow you to avoid the estate tax credit, by providing annual share gifts. Additionally, because there is no market for shares in the FLP, a gift of FLP assets may be appraised for tax purposes at far below the dollar price, or “discounted”. It should be noted that steep discounts can result in an IRS challenge. As a result, some attorneys have begun crafting LLCs to accomplish the same goals as an FLP.

An FLP can also help protect assets from creditors upon death, within limits. Most states have adopted part or all of the Revised Uniform Limited Partnership Act (RULPA). Under RULPA, a creditor can petition a court for a “charging order”. This allows a creditor to receive any income from a partnership due to the individual who owes the creditor, but forbids a creditor from assuming control of a partnership. The same rules apply to creditors pursuing debtors’ interests in LLCs.

In many instances, it is possible to transfer the ownership of an asset to a spouse. This makes it unavailable in most instances to creditors. Many people have actually transferred the vast majority of their assets to a trust, foundation, or other entity. They own little in their own name, and assets controlled by the new entity are not subject to any claims against the individual.

Asset protection, done legally, is very different from actions taken in order to commit fraud against creditors or the government. It is vital to have the advice and assistance of an attorney who has experience in estate planning.

Estate Planning and Elder Law

As the number of older Americans continues to grow, we are dealing with health and legal concerns that most Americans fail to anticipate. Elder law attorneys, who are experienced in estate planning, are also excellent resources in preparing for long-term care, preventing elder abuse, obtaining government aid, and establishing guardianships. Your estate planning should include preparation for old age, including consultation with an attorney who is experienced in elder law.

Government programs such as Medicare cannot be your only safety net. Medicare only covers the first twenty days of nursing home care in full, and part of the cost for another eighty days. Medicare does not cover long-term health care or extended recovery time. Medicaid is designed to assist low-income citizens with medical bills, and will cover long-term care costs. However, individuals with higher incomes do not qualify, and can see their estates vanish given the cost of staying in a nursing home. An estate plan can allow you to relinquish assets over time in order to qualify for Medicaid. This helps you to prevent simply giving up your assets to pay for health care and nursing home expenses.

Medicaid will not allow you to simply transfer your assets immediately before entering a nursing home. You should consult with an experienced lawyer in order to plan ahead for your long-term care needs. While it is never too early to consider these possibilities, it is also never too late.

If your health deteriorates and you are unable to manage your own personal and financial affairs, state law can require that a conservator or guardian be appointed to look after your affairs. A conservator has the authority to make legal and financial decisions on behalf of a disabled person. In most states, a conservator is required to purchase a “surety bond” to protect the estate. The estate of the disabled person pays the cost and expenses of the conservator and any attorney’s fees.

There can be disadvantages to this system. There is little guarantee that a court-appointed conservator will understand and work towards your goals or wishes for your estate. You should set up an estate plan, and choose a trusted person to manage your affairs if you are incapacitated. A health care directive or living will can provide direction to your doctors on whether to put you on life support. A durable health care power of attorney allows you to grant a trusted person the ability to make health care decisions on your behalf.

Early planning allows you to alleviate concerns over these issues before they come up. Given the potentially serious consequences of these decisions, it is vital to consult with an experienced estate planning attorney to ensure that your rights are protected and your estate planning needs are met.

Powers of Attorney

A power of attorney is a legal document which allows the drafter or “principal” to name an agent or “attorney-in-fact” to act on their behalf under certain circumstances. The attorney-in-fact can act on the principal’s behalf, and make legally binding decisions. The power of attorney can be granted broadly or in limited situations, such as poor health or unconsciousness. Given the different types and variations of a power of attorney, it is advisable to consult a lawyer with experience in estate planning before drafting one.

Consider these types of powers of attorney:

Health Care Power of Attorney. This document allows the principal to appoint someone to make health care decisions on the principal's behalf should the principal become unconscious or otherwise unable to make decisions for him- or herself. This is distinguished from what is commonly called a "living will" or "advanced directive," which contains instructions on whether to provide life support or other procedures should the principal become permanently ill or unconscious. Frequently, the health care or medical power of attorney is combined with the advanced directive.
Financial Power of Attorney. In a financial power of attorney, the principal authorizes the agent to have power for the principal to manage property interests and finances. These can include the authority to manage real and personal property, property, taxes, and other actions. However, a financial power of attorney cannot legally give the agent the power to vote, prepare a will, or seek a divorce on the principal’s behalf.
A power of attorney may be referred to as a "durable power of attorney." The word "durable" indicates that the powers granted to the principal endure even when the principal becomes physically or mentally incapacitated (or in legal jargon, "disabled"). The distinction comes from common law in which it was the rule that the power of attorney would cease upon the disability of the principal. Modern statutes allow the power to be durable, which in turn, makes the power of attorney a relatively easy way to plan for one's own care during a disability. A durable power of attorney may be written to be effective immediately or it may be written to take effect upon certain triggers, such as a medical declaration of mental incapacitation.
State law differs on powers of attorney. The name of these instruments, not to mention their powers, varies, although all states have some provision for these measures. If a person is unable to act on their own behalf and has not completed a power of attorney, a court may find it necessary to appoint a legal agent. Depending on state law, this agent can be called a guardian, conservator, or committee. If a court appoints a guardian, you may not be able to choose who this will be.

Other legal documents such as living wills allow persons to provide instructions about their health care and estate planning. The estate planning process should cover the disposition of assets during your lifetime as well as afterwards. If you are beginning the estate planning process or must have a power of attorney drafted, you should contact an experienced estate planning attorney to protect your assets and fulfill your needs.

Your Real Estate Questions, Answered!

Sun, 16 Jul 2023 20:47:21 GMT

Q: What is real estate?

A: Real estate (also called "real property") is a term for land and improvements to that land, such as buildings and infrastructure. Commercial real estate can include factories and equipment as well as other improvements. Resources such as minerals or petroleum below the ground are part of real estate. These resources or the rights to extract them can be sold individually.

Q: What is a deed?

A: A deed is a document that transfers and records ownership of a piece of real estate. The deed contains the names of the seller and buyer, a legal description of the property, and the signature of the former owner. See the Glossary for a discussion of different kinds of deed.

Q: What is a disclosure statement?

A: In some states, the seller must provide a form called a disclosure statement to the buyer. The disclosure statement details problems or other issues with the property or title. Requirements differ between jurisdictions.

Q: What are property restrictions?

A: All land is subject to federal, state, and local regulations. In addition, private restrictions can be placed on a property as a condition of sale. As an example, federal regulations govern environmental impact. State laws typically discuss access to property and procedures for changing property boundaries. Local laws cover zoning rules, and everything from historical preservation to noise levels. Private restrictions are often employed by developers who want their developments to maintain a cohesive look or feel. Developments may employ restrictive covenants to enforce everything from garage size and house design to color schemes and lawn decorations.

Q: What is joint tenancy?

A: Joint tenancy is when individuals own equal shares in a property. Often, spouses hold property as joint tenants. All joint tenants must agree to a sale, to protect each other from having their property sold without their knowledge. If a joint tenant dies, the other joint tenant inherits their share in the property.

A similar form of tenancy is called tenancy in the entirety, which gives each spouse an undivided half of the property. There is also tenancy in common, which allows unmarried partners or commercial partners to own unequal shares in a property. All of these types of ownership can become complicated, and the advice of a competent real estate attorney is essential to a real estate buyer.

Q: How do mortgages work?

A: A mortgage is a loan provided by a bank or other lender, where the collateral is real estate to be purchased using that loan. State laws often vary in their interpretation of mortgage procedure. In addition, mortgages can carry a fixed or adjustable rate of interest. Some government programs provide mortgage assistance to veterans or other qualified individuals. In addition, real estate owners can take on additional mortgages to meet financial needs. Any mortgage is open to foreclosure if the real estate owner fails to make payments.

Q: What happens in a foreclosure?

A: The exact procedure varies widely, depending on state law and the terms of the contract. Generally, real estate owners are given opportunities to avoid foreclosure by setting up a payment plan, and are allowed to stay in their home during the foreclosure process. Lenders often avoid the complications of foreclosure by offering options to assist their borrowers. However, any risk of foreclosure should be discussed with a real estate attorney in order to protect the homeowner’s interest.

The Criminal Defense Process

Sun, 16 Jul 2023 20:38:13 GMT

In order to assure that criminal trials are fair, both prosecutors and defense attorneys are held to a complicated set of rules and regulations. The complexity of these cases require that a defense attorney should have expertise and experience in criminal law. A defense attorney should be involved in a case as soon as possible- ideally, even before police have interrogated a person. When an individual is arrested, the law enforcement officers that arrest them are required to inform the arrested person of their right to an attorney and to have an attorney appointed if they cannot afford legal representation. These warnings are called “Miranda warnings," after the 1960s Supreme Court case that first required them.

Often, cases involving child defendants are handled by the juvenile justice system. This system is less formal, and focuses on rehabilitation over punishment. Many criminal defense lawyers work in both justice systems, while others focus on one type or the other.

It is sometimes possible for a defendant or defense attorney to negotiate with the government. The prosecutor may agree to drop charges if the defendants pleads guilty to a lesser charge. In all cases, the decision to plead innocent or guilty rests with the defendant.

If a defendant is found guilty, he or she may be sentenced to a period of probation, a fine, community service, restitution or other payment, or prison time. In some states, crimes such as rape or murder are punishable by death. A small number of federal crimes (such as treason) are also punishable by death. An experienced lawyer can work to find the best possible deal for their client. If this is not possible, the lawyer will fight in court for their client to convince the jury that there is reasonable doubt as to whether the defendant is guilty.

The possible consequences of a criminal conviction are extremely serious, and if accused of a crime, you can find yourself in confusing and frightening circumstances. To protect your legal rights and your future opportunities, you should immediately seek the assistance of an attorney with experience in criminal defense. Even if the charge seems minor or you are convinced your innocence means you have nothing to hide, the seriousness of the situation demands that you contact an attorney.

Misdemeanors

A misdemeanor is a less serious crime, such as minor theft or public intoxication. The punishment for a misdemeanor is generally a fine or a short incarceration in a local jail. Typically, misdemeanors do not lead to an indictment or the convening of a grand jury, although some cases may be treated more seriously, as the same action can lead to a misdemeanor or a felony charge. In some states, defendants are not entitled to a court-appointed attorney when charged with a misdemeanor. Some states have set up courts specifically to handle misdemeanor cases, with less formal procedures. A lawyer with experience in criminal defense can advise you on the procedures in your state. While a misdemeanor charge is less serious, conviction can still cause large difficulties for an individual who becomes a defendant. Persons charged with a misdemeanor should still get the counsel and assistance of a criminal defense attorney.

The penalties for a misdemeanor conviction are often less severe than felony penalties. This means more than simply smaller fines or less jail time. Persons convicted of a misdemeanor can usually still vote, serve on juries, and practice their job. A felony conviction makes all of these much less likely. In some instances, a defense attorney can negotiate to have a felony charge reduced to a misdemeanor in order to reduce the punishment and future consequences of conviction.

The possibly serious consequences of a misdemeanor conviction mean that you should consult immediately with an experienced criminal defense attorney, should you be charged with a misdemeanor.

You should also keep in mind that some crimes may be charged as either a misdemeanor or a felony. In many states, marijuana possession is a misdemeanor, while possession of the same amount is a felony in other states. An assault can be charged as a felony or misdemeanor, depending on whether it causes lasting injury.

A traffic violation can become a misdemeanor or even a felony if it leads to injury or property damage.

Felonies

Serious crimes are called “felonies”. These crimes can be violent or non-violent, including the theft or embezzlement of large amounts, assault, murder, rape, kidnapping, drug trafficking, racketeering, and fraud. Generally, a felony is any crime with a punishment greater than one year in prison, including the death penalty. Therefore, the punishment defines the seriousness of the offense, not the criminal statute. Even if a state criminal code defines a crime as an “aggravated misdemeanor”, the crime is treated as a felony if the punishment exceeds one year of imprisonment.

Felony trials are handled differently from misdemeanor trials. The court will appoint an attorney to represent a defendant charged with a felony, although it will not always do this for misdemeanor cases. The defendant is generally required to be present for the entirety of a felony trial. In some states, a grand jury indictment is required for a felony charge. Some states disallow testimony from a defendant or witness who has been found guilty of a felony. In some states, a third felony conviction can bring a “three strikes” law into effect, meaning a mandatory life sentence. Finally, in some states a felony conviction can lead to a death sentence.

A felony charge can also affect other charges. In some jurisdictions, an accidental death can be ruled manslaughter or murder if it occurs during the commission of a felony. Conspiracies to commit felonies are generally treated more harshly than other conspiracies.

If a defendant is found guilty, a felony conviction can have serious repercussions for life. Felons not only receive longer sentences, but must suffer worse conditions in prison. Convicted felons are often stripped of their right to serve on juries. They may lose their right to vote. Felons are often barred from some professions, such as law, teaching or the military. Many states bar convicted felons from possessing firearms. And as mentioned, a third felony conviction can lead to a mandatory life sentence.

The seriousness of these crimes and of their punishment makes it vital to have an experienced criminal defense attorney.

False Accusations

More often than you might think, the wrong person goes to jail for a crime. Although such cases are relatively rare, they do occur- and an innocent person suffers while a guilty person goes free. If you are falsely accused of a crime, the best way to protect your rights and ensure that your innocence is established is to seek the assistance of a criminal defense attorney. A skilled attorney can deal with the complications of the legal system in order to protect your rights and work for a fair outcome.

Your case will not be treated differently if you are falsely accused. Do not assume that because you are innocent, you will not need the help of an attorney. You may actually need an attorney more, in this case. In some cases, a falsely accused person will plead guilty to a lesser offense. Often, this allows people to avoid risking conviction and a jail sentence by going to trial. Obviously, many innocent people refuse to handle their cases in this fashion. An experienced lawyer can help to explain your case and tell you the benefits and disadvantages of taking actions like these.

If you are successful in proving your innocence, you may be able to file a lawsuit and recover damages from the individual who brought charges. You can sue a private citizen for making a false criminal charge or complaint. You can also sue a government law enforcement officer, in this case for false imprisonment or a civil rights violation. These lawsuits are called Section 1983 actions.

You can recover actual injuries, such as lost wages, attorney fees, damage to reputation, and other real costs incurred as a result of the accusation. It is also sometimes possible to recover punitive damages, which punishes the person for making a false accusation and discourages others from doing likewise. In order to win a case and prove a false accusation has been made, the plaintiff must show that the charge was dismissed, that the defendant was responsible for causing the charges to be made, and that the charges cannot be reasonably explained. It is not enough to merely prove that charges were dropped.

Again, the best way to protect your rights and understand your situation is to seek the help of a defense attorney. The most important consideration is finding an attorney with expertise and experience in criminal defense. Your reputation, your future, and possibly your life hang in the balance; you should get the best legal assistance you possibly can.

Frequently Asked Questions about Criminal Law

Sun, 16 Jul 2023 20:32:10 GMT

Q: Is it possible to be prosecuted for an attempt to commit a crime?

A: There are statutes in many jurisdictions which make the attempt of crimes like robbery or murder a crime. These statutes are intended to punish individuals who have demonstrated the intent to commit a crime, regardless of whether that crime occurred. Conviction for an attempted crime requires the government to prove beyond a reasonable doubt that the person charged had the intent to commit the crime or create a situation that would amount to that crime, and that the person took steps beyond merely preparing to commit the crime.

Q: Who is a prosecutor?

A: A prosecutor is an attorney employed by the government. Prosecutors are responsible for presenting the government’s case against a defendant, or person charged with a crime. The government must investigate, arrest, and charge a defendant, and then bring the defendant to trial. Depending on the government body for which they work, a prosecutor may be called a city attorney, a county attorney, a state’s attorney, or a district attorney.

Q: How does a prosecutor decide whether to charge an individual with a crime?

A: There are three main considerations. The first is that the case against an individual is sound. The law must be clearly defined, and there must be no defects such as a violation of the defendant’s constitutional rights or the destruction of evidence. The second is that there must be enough evidence against the defendant to make a conviction probable. The third consideration is whether the case matches the objectives of the prosecutor’s office. In some cases, a more informal resolution may be appropriate.

Q: What is a grand jury?

A: In some cases and jurisdictions, the prosecutor is entitled to call a grand jury to gather information about a criminal case. The grand jury listens to testimony and examines evidence. During these proceedings, the prosecutor coordinates the testimony and introduction of evidence, and provides legal advice. The grand jury then decides whether there is enough information to put a defendant on trial.

Q: How is probation different from parole?

A: Parole and probation are both terms used for punitive measures after the conclusion of a trial. Parole is the release of an individual from prison, on the condition that the individual is supervised by a court officer. Probation is a criminal sentence not connected to imprisonment. Probation is often the sentence for a first offense or a less serious offense. An individual on probation must generally meet certain terms and conditions to stay within the community.

Q: What is restitution?

A: Restitution requires a defendant to pay monetary damages to the victim or the victim’s next of kin. This money is intended as compensation for medical bills, property damage, and other costs the victim incurs as the result of a crime. The federal Mandatory Victims' Restitution Act of 1996 requires restitution for violent crimes and some non-violent crimes. Many other state and federal laws also require restitution.

Q: What is a white collar crime?

A: Originally, a white collar crime was one committed by an upper-class individual (or someone who wore a “white collar” to work). The modern definition does not focus on the class of the individual, but on the type of crime. These generally include fraud or deception to gain property, money, or a business advantage. While these crimes are non-violent, they can have a tremendous impact. For example, the S&L scandal of the 1990s cost American taxpayers billions of dollars.

Q: Is it possible to prosecute a child who commits a crime in the same way an adult would be prosecuted?

A: In most cases, children who commit crimes are subject to the juvenile court system, a separate judicial system which emphasizes rehabilitation over punishment. However, children who commit serious crimes can be charged as adults. They will then be tried and punished through the regular judicial system.

Q: If I’m innocent, should I still get a lawyer?

A: Even if you’re innocent, it’s possible that you could be convicted of a crime. Every defendant needs representation to ensure that they protect their legal rights.

Q: Do I need a lawyer if I intend to plead guilty?

A: A lawyer can help you to reduce your sentence and increase the opportunities available to you. Whether or not you are guilty, you have inalienable constitutional rights, and your defense attorney can help to protect and preserve them.

Starting a Business? Here are the legal things to consider.

Sun, 16 Jul 2023 20:04:55 GMT

Starting a business:

We provide a wide variety of services to our business clients, including assisting in selecting the type of organizational entity under which to operate, preparation of agreements, sale and purchase of businesses, obtaining financing and funding for business operations, and employee relations, and dissolution.

We regularly assist clients in selecting among and incorporating or organizing new business entities in for new businesses, including C corporations, S corporations, limited liability companies (LLCs), limited liability partnerships (LLPs), limited partnerships (LPs), and other joint ventures.

Financing and the Business Plan

When starting a new business, you will need to finance it and set up a business plan. An experienced business law attorney can help you to take these steps.

There are a large number of costs associated with any new business. You must consider one-time expenses and start-up costs, from construction and renovation to inventory to advertising costs to hire new employees. You will need to draw up a business plan and organize your business.

Typically, financial institutions and other investors require a business plan before agreeing to finance a new business. Your business plan should include:

A description of the business and its features.
What goods or services you will sell.
A marketing plan that indicates your customer base.
Research showing a need for your business.
Staffing and management plans, showing how you will organize and run your business.
Financial plans. These should show the cost of starting, operating, and maintaining the business and indicate what profit is expected and when.

A new business owner must always be aware of the costs involved in starting a new business. All start-up costs and one-time expenses must be considered. The business owner will want to contact a financial institution and/or other investors in order to attain financing.

Permits, Licenses, and Other Legal Concerns

As a new business owner, you will face a number of legal issues, including licenses and permits, zoning, name and trademark registration, and others. You should consult an attorney with experience in business planning and these areas in order to protect your legal rights.

When naming your business, you should first see whether the name is legally available. Your state’s secretary of state can inform you whether the name you’ve chosen for your business is taken. Often, this information is readily available from the secretary of state’s website.

You can also find contact information for these companies. You should also determine if your name conflicts with a registered trademark, by visiting the federal Patent and Trademark Office’s website at www.uspto.gov.

You may require a license or permit to operate your business, depending on what your business is and where your business is located. You should carefully research all regulations and laws governing your business; your state and local governments (and your local Chamber of Commerce) can help you find the requirements you need to fulfill. The state of Iowa has some helpful resources at:

The department of revenue

The department of economic development

In most cases, you need a state license to work as a:

Dentist
Physician
Lawyer
Teacher
Accountant
Contractor/trade worker
Barber

Often, city or county governments regulate business activity by requiring permits, including:

Noise permits
Equipment permits
Construction permits
Public gathering permits
Sellers’ permits

You may be required to pay ongoing fees, update fees, or to complete regular testing for some business activities. Many jurisdictions require businesses to publicly post their licenses and permits.

Many city and county governments also enforce zoning regulations. Government zoning classifies land into different zones, with separate rules regarding land use, the size and height of allowed structures, and many other aspects of ownership. Zoning is part of a state’s “police power”, which allows states and local governments to regulate land use for the benefit of the public. It is a good idea to understand zoning restrictions in your area before purchasing land or starting up a business.

Given the amount of legal preparation involved in starting a business, and the consequences of failing to do so, you should contact a lawyer for help with business planning and land use matters.

Organizing Your Business

You should be aware of the advantages and disadvantages of different business structures in order to decide on how your business should be organized. This will have a large impact on daily operations and on which statutes and regulations you will have to follow. There are four major business organization types: the sole proprietorship, the partnership, the limited liability company, and the corporation. In choosing which type of organization you should have, the most important considerations should be taxes and liability.

Sole Proprietorships

A sole proprietorship is any business with one owner which has not been set up as a limited liability company or corporation. This is the simplest form of business organization, and begins as soon as the owner opens for business. Decisions are managed by the owner and the process of recognition is quite simple. The sole proprietorship, however, does not protect its owner’s assets. Any action taken by a sole proprietor or an employee can create liability for the sole proprietor. Profits from the business count as personal income, and must be reported by the owner to the IRS. In short, the owner reaps all the benefits of owning a business, but has no protection against possible hazards.

Partnerships

There are two major forms of partnership, a general partnership and a limited partnership. In a general partnership, two or more persons are co-owners of a business. They all participate in management of the business, and all are personally liable for any obligation incurred by the business. Partners are legally bound by any business-related action taken by another partner. All income is split and reported by the general partners as personal income.

In a limited partnership, there must be at least one general partner responsible for management and at least one limited partner. The limited partner may contribute capital but is not involved substantially in managing the business. A general partner is liable personally for business obligations, but a limited partner has limited liability and can only be held responsible to the degree of their capital investment. Limited partnerships must be registered with your state’s secretary of state. The filing process can be extremely complicated. While partnership is still flexible and allows a business owner to share the responsibilities of management, it raises the question of trust, since partners are liable for each other’s actions. All partners must also consent if one partner wishes to sell or transfer their interest in the partnership.

Limited Liability Companies

A limited liability company (LLC) uses elements of corporations as well as partnerships in its organization. Generally, your state’s secretary of state must receive filed papers to create an LLC. In most states, one person can form an LLC. The filing also requires a written agreement which details the rights and responsibilities of all LLC members. LLC owners only risk money which they have invested. An LLC’s debts can legally only be paid using the LLC’s assets. The owners are therefore protected against personal liability. However, LLC owners report their share of profits and losses as personal income; the LLC is not a taxable entity. An LLC can be very complex to set up.

Corporations

A corporation is legally a separate entity from its owners and managers. Corporations are legally considered persons, and can enter contracts, incur debt, and pay taxes independently. The owners are therefore protected from the corporation’s creditors and only liable to lose money invested in the corporation. Creating a corporation requires several important legal procedures, which generally include:

You must file articles of incorporation with your state’s secretary of state.
You must produce written bylaws to govern the corporation, including meeting rules, decision processes, and voting rights.
You must convene an initial meeting of the board of directors.
You must issue corporate ownership stock.

The corporation is therefore extremely complex and expensive to set up and manage. However, it is relatively easy to add new owners and to gain new capital, and the freedom from legal and financial liability allows the owner to experiment and take risks. Choosing the best form of business organization is a crucial decision, and one that can be very complex. Before organizing your business, you should seek the advice of an attorney with experience in business planning.

Hiring Employees

A number of state and federal laws impact the process of hiring a new employee. You must be careful to maintain legal compliance at all stages of the hiring process, from advertising and interviewing to hiring and employment. At all times, employers must refrain from illegal discrimination. You should take precautions to ensure you do not hire illegal immigrants. You must also observe age regulations and respect privacy rights.

The consequences of failing to abide by these rules can be severe. You should consult with an attorney who is experienced in business planning and employment law to ensure that you maintain compliance with federal laws as well as laws that apply in your jurisdiction.

Before you advertise for a new employee, you should determine the requirements for the job. Use these requirements to determine which questions should be asked on the job application. Using the requirements as a guideline can help to guide your decisions and examine each applicant fairly.

Private businesses are not required to advertise for job openings, and jobs can be filled however the owner or manager wishes as long as the employer maintains compliance with federal, state, and local regulations. You should be aware that advertising can be of great advantage to your business. Advertising a job opening can bring you a much wider pool of qualified applicants, increase the odds of finding the right person, and help to eliminate the question of discrimination. A wider pool of applicants lets you maintain your options, view a more diverse group of applicants, and still allow you a full examination.

You should also consider writing down your company’s policies and procedures in an employee handbook, to minimize misunderstandings over policies, compensation, and other employee issues. Every new employee should be given a handbook.

A number of federal laws prohibit discrimination. These must be followed strictly when hiring or paying employees. All of the following laws are enforced by the U.S. Equal Opportunity Commission:

Title VII of the Civil Rights Act (1964), which bars discrimination in employment based on race, color, religion, sex, or national origin.
Equal Pay Act (1963), which prohibits unequal treatment of men and women performing substantially equal work.
Age Discrimination in Employment Act (1967), which prohibits discrimination against workers over 40.
Title I and Title V of the Americans with Disabilities Act (1990), which prohibits employment discrimination in the private and state or local government sectors against individuals with disabilities.
Sections 501 and 505 of the Rehabilitation Act (1973), which prohibits discrimination in federal employment against individuals with disabilities.
Civil Rights Act (1991), which provides for damages in claims of employment discrimination.

Even after the hiring process is complete, businesses must meet a number of regulatory and filing requirements. For the state, you must:

Report the new hire to the state employment agency.
Register the new hire and pay state unemployment taxes.
Withhold and pay any state income taxes.
Filing concerns for the federal government include:
Have the new hire complete the Employment Eligibility Verification I-9 form.
Have the employee complete the IRS W-4 form.
Withhold and pay payroll, Medicare and Social Security taxes to the IRS.
File an IRS SS-4 Form to obtain a federal Employment Identification Number (EIN) for the new employee.
File an IRS 940-EZ form to report federal unemployment taxes for each employee.

In addition, you must:

Prepare an injury and illness prevention plan in compliance with Occupational Safety and Health Administration (OSHA) standards.
Acquire workers’ compensation insurance.
Post all notices required by the state and federal Department of Labor.
Inform all employees of employee benefits.
The process of hiring employees can be complex, and it exposes your business to potential damages. You should obtain the counsel of an attorney with experience in business planning before beginning the hiring process.

Employee Pay and Compensation

The federal Department of Labor and state agencies regulate many aspects of employment, ranging from overtime and child labor to the minimum wage and recordkeeping. These laws are often very complicated. In order to avoid legal problems, you should consult with an attorney with experience in business planning and employment law.

The Fair Labor Standards Act (FLSA) sets many of the standards employers must meet. Here are some of the requirements of FLSA:

Minimum Wage. The federal government requires all employers to pay a minimum wage of $5.15 an hour for covered nonexempt employees. Employees who make at last $30 a month in tips do not qualify for the minimum wage; however, their pay plus tips must be the equivalent of at least $5.15 per hour.
Child Labor. The FLSA prohibits persons under 18 from performing certain jobs.
Weekend, Night, and Overtime Pay. The government does not mandate extra pay for work on weekends or nights. However, any time worked past 40 hours per week must be compensated at an overtime rate of at least 1 1/2 times the regular rate. Employees 16 and older can be required to work any number of hours, as long as overtime is paid.
Vacation, Sick, and Holiday Pay. The FLSA does not require pay for time not worked.
Severance Pay. The FLSA does not require severance pay.
Breaks and Meal Periods. The FLSA does not require breaks or meal periods.

A number of employees are exempt from FLSA provisions. In most cases, these exemptions are interpreted in favor of the employee, who must nevertheless meet strict requirements. Employees exempt
from overtime pay include:

Sales personnel who make more than 1 1/2 times the minimum wage.
Computer and IT personnel making at least $27.63 an hour.
Drivers, mechanics, and other employees whose duties impact the safety of vehicles involved in transporting goods or passengers.

Some employees are exempt from FLSA’s overtime and minimum wage requirements, including:

Sales personnel and mechanics who work for an auto dealership.
Farm workers. Young farm workers can also be exempted from child labor laws.
Seasonal and recreation employees.
Administrative, executive, professional and sales personnel who receive a salary.

Keep in mind that while this overview covers FLSA requirements, state and local laws may have much stricter requirements.

In addition, there are a number of other federal laws governing employment. The Family Medical Leave Act (FMLA) allows some employees the right to take 12 weeks of unpaid leave to attend to family or medical matters. Military personnel are granted some job-related rights and protections. The Employee Retirement Income Security Act (ERISA) mandates certain requirements for the administration of pension plans. The issue of employee pay is very complex, and the number of state and federal regulations governing the issue make it vital for any business owner to have the advice of an experienced attorney.

Business Insurance

One of the most important decisions facing a new business owner is the acquisition of insurance for the business and for employees. To determine what insurance you will need, you need to understand the potential risks your company faces. Federal or local laws may require you to have certain insurance coverage, as might a contract. A competent business planning attorney can give you advice on these topics.

These types of policies can help to protect your business:

Commercial Multi-Peril or Business Owner’s Policy. This is a standard policy that covers property damage, liability, business interruption, and sometimes workers’ compensation. Some businesses are not eligible for this policy.
Property Insurance. Property insurance covers your business against financial losses resulting from physical damage to your property from fire, lightning, wind, storms, or vandalism. It can also protect personal property such as art, furniture, materials, or inventory.
General Liability Insurance. This policy covers you against losses when your business is legally responsible for damage to someone’s property or health.
Business Interruption Insurance. If your property is damaged or lost and must close for a period, this policy protects you against losses. It also covers losses incurred to avoid or minimize time spent closed.
Product Liability Insurance. This protects you against losses incurred when your product harms a user or the user’s property. This insurance is vital for any business that manufactures or supplies products.
Malpractice or Professional Liability Insurance. This insurance protects the business against claims of error or negligence. Depending on your business and the state you reside in, this may be required by law.
Business Vehicle Policy. This policy protects vehicles owned or used by your business. You may need special coverage if your employees use their personal vehicles for work.
Umbrella Insurance. This covers your business against losses above the limit of your liability policy.

There are also types of insurance that help protect your employees as well as your business:

Health Insurance. In some cases, you can save costs and provide better service to your employees by offering a group health insurance plan.
Workers’ Compensation Insurance. This covers employee wages in case of accident or injury. In many states, this coverage is required by law. Also, some states require businesses to purchase workers’ compensation insurance from their own government.
Life Insurance. Life insurance can be invaluable in providing for your family and loved ones.
Disability Insurance. Disability insurance can be used to cover you or an employee if injury or illness makes it impossible to work.
Keyman Insurance. If a key employee is unable to work or dies, keyman insurance covers revenue lost or the cost of replacing the employee.
Insurance is a key protection for your new business. You should consult an attorney with experience in business planning for assistance in setting up new insurance policies.

6 Things You Should Know About Real Estate Law in Iowa

Sun, 16 Jul 2023 19:34:52 GMT

Real estate is covered by both federal and state laws. State laws differ on a number of issues. As a result, it is important to protect your interests by retaining an experienced attorney for routine as well as complex transactions. This overview will discuss topics that are important in understanding real estate law.

Brokers

Real estate brokers may be employed by sellers to find a buyer for a property, or by a buyer to locate a property for purchase. When a seller employs a broker, they sign a listing agreement which obligates the broker to work to locate a buyer, and the seller to pay the broker a commission upon sale. Brokers are usually held to rigorous standards in order to be licensed. A broker is a legal agent of the person who hired him or her, and thus has duties and obligations to work in their client’s interest. The broker is not a party to any agreements about purchase. These agreements are strictly between the seller and the buyer.

Contracts and Transfers

Real estate purchase agreements are governed by contract law. To be enforceable, these agreements must, therefore:

Be in writing.
Be reasonably definite as to what is being sold, the price, dates of closing and possession, and other important terms.
Be supported by consideration, i.e., earnest money.

Once the parties agree on the terms and the contract is signed, the next phase in the process is usually contingency fulfillment. In other words, the buyer and seller fulfill their respective promises that lead up to and are contingent on their final completion of the deal. For example, the buyer will nail down financing and, in Iowa, the seller will have the necessary title searches performed.

The title search is he process of examining the public records. In Iowa, it is typically the seller's obligation to provide an abstract of title demonstrating that the title to the property is marketable by law and under the Iowa Bar Association's Iowa Land Title Standards. The abstract of title is a summary of all material public records on file that affect the marketability and use of the real estate. The abstract will be prepared by a professional (the abstractor), who certifies that the abstract is an accurate summary. This process also exists in other states, but the professional is employed by a title company.

The title search is then examined. In Iowa, this is typically done by the buyer's attorney. In many other places in the United States, this is done in-house by the title company or an underwriter for a title insurer. In either instance, the goal is supposed to be to report on what must be done to give the buyer a good, clean, marketable title to the property.

Iowa boasts having the cleanest titles in the nation because of the attorney examination system. In other parts of the country, the buyer receives an insurance policy with the deed purporting to insure against defects of title. Rather than fixing problems, it is easy to "insure over" the defect and hope that it does not blossom into a big problem.

To complete a land transaction, the seller is required to execute and deliver a deed that includes a legal description of the land. The deed be be delivered to the buyer when the agreed price is paid and all the promises in the purchase agreement are fulfilled. The deed is then recorded with the county recorder to show the transfer ownership. After delivery, there is frequently a final title search to verify that the Seller has not incurred any intervening liens and to confirm the buyer's good title and any liens for new mortgage loan financing.

Mortgages and Foreclosure

There are a number of methods to finance a real estate transaction. The most common is a mortgage. This is a loan which transfers an interest in the land as collateral for repayment of the debt. The borrower typically pays the mortgage in installments that include both interest and principal payments. If the borrower fails to make payments, the mortgage’s owner can and will foreclose on the property. In a foreclosure, the lender declares that the entire debt is due immediately. If this is not repaid, the lender can sell the property to pay the remainder of the debt.

Foreclosure procedure depends on federal and state laws, the terms of the mortgage, and the existence of any other liens on the property. A limited amount of late payments are allowed in many states in order to avoid foreclosure, and most lenders also attempt to work extensively with borrowers in a variety of situations before going through with a foreclosure as a last resort to receive payment. If a foreclosure is threatened, a borrower should consult with an experienced real estate attorney to protect his or her interests and resolve the situation as soon as possible.

Borrowers in Iowa may benefit from contacting Iowa Mortgage Help for counseling and potential assistance. A borrower in foreclosure should receive a notice regarding this service.

Deeds

A deed is a legal document which records the transfer of real estate between owners. No real estate transaction is complete unless the buyer receives a valid deed to the property. Legal requirements for deeds include:

Must be in writing. Verbal transactions are not legitimate.
The names of the buyer and seller.
A legal description of the property.
The signature of the person transferring ownership.
Must follow state and federal laws.

State laws differ regarding the language and format for deeds. There are different types and the two most common deeds are quitclaim and warranty deeds.

A quitclaim deed allows the seller to resign any rights he or she has to the property. However, it does not guarantee the extent of these rights. Quitclaim deeds are often employed during divorces, when one spouse transfers property rights to the other. This does not release one from an obligation to a mortgage they have signed.

A warranty deed includes an explicit promise to the buyer that the seller has clear title to the real estate. The warranty deed offers the buyer much greater protection, as it guarantees that no liens or encumbrances are extant against the property and undisclosed in the deed. It also obligates the seller to protect the buyer against any defects in the deed. A special warranty deed only contains this guarantee for claims which arose while the seller was the legal owner of the property.

It is a good idea to officially record the deed and make it public record. County governments record property deeds at an office, which is often (but not always) called one of the following:

The recorder’s office.
The land registry office.
The register of deeds.

Even if the broker or closer handles the recording of the deed, it is a good idea to make sure that this crucial step takes place. Recording the deed makes the transfer public record, and allows future title searchers to find the history of a property’s ownership.

Given the crucial nature of the deed, it is vital to have the deed reviewed by a competent real estate attorney.

Home Inspections

A home inspection can relieve some of the stress of purchasing a house. Independent home inspectors can give a buyer a full assessment of the property he or she is considering purchasing. The inspector’s report provides a full and unbiased evaluation of the house’s condition and indicates whether the house needs any work or may need work in the future. Reviewing a home inspection report with a real estate attorney will provide a buyer with an advantage when negotiating the purchase.

Obviously, a buyer should inspect a house before making a decision. However, a professional inspection should be done to uncover less obvious defects. In many states, inspectors require a license. Appraisals required by lenders are mainly superficial, stating the property’s value compared to similar properties sold within mainly the past six months, and do take the condition of the home into consideration of the value. FHA and VA loans also require a third party appraisal, and will require that specific cosmetic and other obvious defect be repaired before completion of the sale. These repairs are considered as completed when assessing the value of the home by these government licensed inspectors. Appraisers do request or recommend additional inspections if they see problems that raise suspicion, such as potential structural defects or insect infiltration, such as termites. Termite inspections are mandatory for VA mortgages, and are extremely advisable on all others.

Home inspectors look at a number of things, including:

Structural issues. These include the foundation, ceilings, walls, floors, and roof.
Mechanical systems. These include the electrical system, plumbing and waste disposal, heating and air conditioning, water source and quality.
Construction issues. These include ventilation, insulation, windows, and doors.

When inspectors discover problems, they may recommend a more thorough investigation. Buyers should also consider requesting inspection for health-related issues such as radon, lead, or asbestos. Many buyers prefer to attend the inspection, although this is not necessary. Many inspectors will answer questions about their findings and offer an objective opinion at the inspection.

Most often, home inspections are not done before completing an offer on a property, and the buyer should always include an inspection clause in the offer. This allows the buyer to back out of the purchase if an inspection reveals serious problems. It can also require the seller to adjust the sale price or repair problems before purchase. The cost of an inspection is generally less than $500. It is well worth the price to disclose problems with the property’s value and safety. A real estate attorney can help to guide you through the inspection process.

What to Expect at Closing

Closing a purchase for real estate varies in each state. While some closings are done in your attorney’s office, others are completed at the lender's or a title company's offices. Either way, the closing meeting is where the ownership of a property is officially transferred. A closing may be attended by the buyer, seller, their brokers, and the closing agent. (Frequently, buyers and sellers never meet, and their agents and attorneys handle all of the interaction well before the exchange of the purchase price and the deed.) If the buyer is borrowing money to complete the purchase, a representative of the lender may also attend. All open issues should be settled before the closing, yet not always. At the closing, any remaining open issues are settled, the closing statement is verified, and all necessary documents are signed. A real estate attorney can help to advise you through this process.

A good closing agent will help the buyer through the complicated aspects of the closing. When financing is involved, however, the closing agent is typically there representing the interests of the lender. While the buyer's and the lender's interests are closely aligned, they are not the same. An attorney’s assistance can be invaluable in determining that the buyer has received everything the buyer has bargained for and that closing costs are allocated correctly.

The closing costs cover a large number of one-time fees. For the buyer, they also include the first year’s payment for homeowner’s insurance, real estate tax and one month of property taxes escrow, and mortgage interest. Other fees covered in closing costs include but are not limited to:

Attorney fees
Loan origination fees and rate discount points
Appraisal fees
Recording fees
Survey fees
Document preparation fees
Inspection fees
Homeowner’s association fees

At a closing, the seller and buyer will provide items required by the contract, such as proof of homeowner’s insurance, warranties, and other documents. Once both parties have approved the closing statement and all documents, the seller and buyer sign the statement, the buyer signs the mortgage, and the seller signs the deed and transfers ownership. Generally, the buyer pays all closing costs unless otherwise stated in the purchase contract. The closing agent provides the buyer with a settlement statement detailing the closing costs, and then records the deed and (when applicable) the mortgage.

The buyer usually receives the following documents:

Settlement statement
Mortgage and mortgage note
Copy of the deed
Truth-in-Lending statement
Sales contract
Keys to the property
Any required affidavits

Real Estate Law: A Glossary of Real Estate Terms

website@sitemodify.com (Website Editor) — Tue, 12 Mar 2019 14:53:24 GMT

Real estate law covers a great number of topics, and includes a number of specialized terms and jargon. An experienced attorney can help explain these concepts to you.

Appraisal:

An appraisal is an estimate of a property’s value. Appraisals are conducted by an uninvolved third party, and compare the sale price of a property to the values of similar properties in the same area within the past year, preferably within the last six months. Most mortgage lenders require an appraisal before offering a loan.

Assessment:

A charge levied by the local government for infrastructure that benefits adjacent properties. This includes road work, sidewalks, or sewer/gas lines. Adjacent property owners pay proportional shares of the improvement’s cost.

Broker:

A real estate broker works for one of the parties in a real estate purchase. They are licensed persons or organizations.

Closing:

The final part of a real estate transaction, where both parties review the terms of sale and the actual sales documents. The seller transfers ownership at the closing, while the buyer generally pays closing costs and, when applicable, finalizes the mortgage.

Condominium:

From the Latin for “co-ownership”, a condominium is a building split into individual apartments owned by the residents. The condominium association’s common areas are shared by the owners. The association pays taxes and deals with property maintenance and improvement. Condominium owners generally pay association fees as well as mortgage payments. Property insurance on condominiums or townhouses may or may not be included in homeowner association fees. If they are included in the homeowner’s fees, they do not cover personally owned property, such as furniture or electronics. A review of policies covered by homeowner associations before purchase is wise, as well as a review on the upkeep of the community property.

Contract for Deed:

A contract for deed leaves legal ownership of a property with the seller until the buyer makes full payment of the purchase amount. The buyer is given use of the property.

Deed: A document that transfers ownership of real estate. As discussed above, a warranty deed includes a guarantee by the seller that his or her title to the land and improvements is uncontested. A quitclaim deed only transfers rights to the property that an owner has, and contains no guarantee that the seller has a clear title, or relieves them from debt in which the property is claimed as collateral.

Foreclosure:

This is a process by which a mortgage lender takes legal ownership of a property when a buyer fails to make mortgage payments. In most states, foreclosure proceedings involve court appearances and are regulated to prevent abuse.

Joint Tenancy:

A form of ownership in which spouses or other parties own equal shares in a property.

Mortgage Loan:

Any loan where the collateral is the property being purchased with the loan money. Like foreclosure, mortgage regulations differ from state to state. Mortgage loans may have fixed or adjustable interest rates, and may have balloon payments that have a total balance due after a certain number of years. FHA and VA loans may be transferable, others may not.

RESPA:

The Real Estate Settlement Procedures Act. RESPA protects buyers by requiring mortgage lenders to disclose all policies and relationships to a mortgage borrower. It also requires lenders to provide fair estimates of all service charges and transaction costs.

Survey:

A mapping of boundaries, easements, and improvements on a property. Lenders often require surveys before a transaction, especially for commercial or new residential developments, in order to resolve any irregularities. Most states have time limits on the age of surveys.

Title Insurance:

Title insurance is an insurance product that provides coverage against claims for defects in a property’s title. A lender will typically require that the buyer pay for a title insurance policy protecting the lender. Title insurance may not be legally sold in Iowa. The State of Iowa has a program called Iowa Title Guaranty that issues an insurance policy on the industry standard (ALTA) forms and backed by the State of Iowa. The two main differences between Iowa Title Guaranty and out-of-state title insurance is (1) that the premium stays in Iowa and is used for housing programs to benefit Iowans, and (2) that the attorney title examination system helps to preserve and protect good titles, rather than to insure over defects.

Title Opinion:

A title opinion is an attorney's title examination report, which describes (a) the real estate, (b) the title holder, (c) the liens or encumbrances on the property, (d) the easements and other use restrictions on the property, and (e) outlines the requirements for obtaining good marketable title.

The Milestones in Probate/Estate Administration

website@sitemodify.com (Website Editor) — Mon, 11 Mar 2019 14:55:30 GMT

Understanding Terms.

“Probate” refers to the process of authenticating a deceased person’s will. “Estate administration” is the process of settling the affairs of a deceased person, whether the person died with a will or without. A “testate estate” is an estate with a will, but an “intestate estate” is an estate in which the person did not have a will. The “residuary” or residue” is what is left over after debts, taxes, and expenses are paid and specific gifts of property are distributed. So, a “residuary beneficiary” is one of the people entitled to the residue.

When estate administration is begun, the court appoints a person or a bank with a trust department as the decedent’s “personal representative.” The personal representative swears an oath as a court officer to execute the laws of the state in settling the decedent’s affairs. In a testate estate, this person is sometimes called the “executor,” and in an intestate estate, the person is sometimes called the “administrator.” A personal representative is sometimes also referred to as a “fiduciary,” which is a person who undertakes duties for and is responsible to others. In Iowa, when the court orders the appointment of the personal representative, the clerk of court then issues to that person “letters of appointment,” which is the personal representative's proof of authority.

Why do this?

The purpose of estate administration breaks down into three main objects and phases:

Collecting the decedent’s property (and making the appropriate reports to the court, taxing authorities and beneficiaries (or statutory heirs));

Paying the decedent’s debts and taxes and any estate or inheritance taxes owed; and

Distributing the net balance of the decedent’s property to the intended beneficiaries (or the statutory heirs).

We need a court-appointed personal representative mainly because of the the character (and sometimes the extent) of the decedent's property. For example, if the decedent was the sole owner of stock in a publicly traded company (whether it is Google or ABC Widgets, Inc.), the shares need to be liquidated or transferred in kind to the beneficiaries. The company whose stock the decedent owned and its transfer agent obviously are not in business to decide who has the power to sell or reregister the stock or who gets the stock from the decedent's estate. They want good documented authority of a person authorized to act for the decedent, and that comes in the form of a court-certified document (in Iowa called "Letters of Appointment") that shows who has that power. Similarly, the marketable title rules in Iowa dictate that an interest in land be conveyed by a personal representative if the decedent was the sole owner of an interest in that land. On the other hand, if these types of property are held by the decedent, for example, in joint tenancy, there may not be a need for a personal representative because the law dictates to whom the property goes and because there is only a need to present proof of death to complete the transfer.

Important Milestones.

In Iowa, estate administration has a number of important milestones and deadlines, all of which are typically accomplished through the cooperation and assistance of the estate’s attorney. Upon appointment, the executor must give notice by mail and by publication in the newspaper of the administration of the estate. The mailed notice must go to known beneficiaries and creditors, and a notice must be served upon the Iowa Department of Human Services. The claims of creditors and challenges to the will are cut off four months after the second publication of notice in the newspaper. Within 90 days of appointment, the personal representative is required to make report (frequently called the “probate inventory”) to the court. Within nine months of appointment, the personal representative must file Iowa inheritance tax and federal estate tax returns, if required. The estate's income tax year is also an important factor in administering an estate.

Income Taxes. An estate, like a person, is a taxpayer. While it can be on a calendar year, it typically has a fiscal year that ends on the last day of the month preceding the month of death (e.g., if the death is on the 15th of May, the fiscal year ends on April 30). The estate will have its own taxpayer identification number. The estate will file its own tax return, Form 1041 Fiduciary Income Tax Return. Typically, the income of the estate will flow through the estate to the residuary beneficiaries. In the final year, if expenses exceed income, as they often do in a first and final tax year, the “excess deductions” flow through to the residuary beneficiaries.

On the Matter of Fees.

Iowa probate fees tend to be somewhat modest when compared to those of other states. The court costs assessed are minimal, $30 for the first $25,000 of valuation and $25 for each additional $25,000 of valuation (a basic $300,000 estate will pay about $400 in court costs when costs for orders and certifications are included). The executor is entitled to a fee equal to approximately two percent of the gross value of the estate. Likewise, the Iowa Probate statute allows the attorney for the estate a reasonable fee on the same schedule as the executor. A shorthand calculation of the statutory fee is: (gross value of the estate - 5,000) x .02 + 220 = statutory fee. It should also be noted that the executor may have an itemized statement from the attorney for the estate, and the fees must be approved by the court. The time and effort involved for both the executor and the attorney in settling the affairs of a decedent generally is substantial and involves significant expertise on the part of the attorney to make things go smoothly. If the executor is also a beneficiary, it may not be in the executor's interest to take the fee because the fee is taxable income to the executor (often the executor is also a beneficiary entitled to all or a large portion of the same monies free of income tax.

How Long Must This Go On?

The time necessary to administer an estate varies greatly from estate to estate. So, before comparing any two estates, be sure that you are comparing apples to apples: Great Aunt Bessie might have had two certificates of deposit and a rocking chair and may have been over and done with in five months, which is an estate much different to administer than Grandpa Fred's 160 acres of farmland in two counties, crops in the ground, and shed full of implements, which might easily last a couple of years. Many estates can be fully administered in a matter of nine to twelve months. The things that have an impact on the length of estate administration include the following, for example: the type and location of the property; the difficulty of liquidating the decedent's assets, if necessary; whether there are claims for unpaid debts; whether there are challenges to the will; and the level of cooperation of the executor and beneficiaries. Lastly, an Iowa estate cannot be officially closed by the court until the Iowa Department of Revenue issues a statement to the estate certifying that all taxes owed the State of Iowa have been paid, which depends upon the filing of the final fiduciary income tax return and the department's internal review process.