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Can I Draft My Own Pre-Nup? And More Free Legal Advice – Free Joe 10/18/11

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On Tuesdays and Fridays, attorney Joe Escalante answers legal questions for free on the LegalZoom Facebook Page. Did you miss the last Free Joe? Don’t worry. We’ve got it all right here.

Loopz: Hello… I’m a 20year old female and have a baby boy of a year old. I’ve been raised by my mother and her friend. She has been there since i was 4years old. Raising and taking care of me. My question is if i change my last name to hers and have proof that she has been taking care of me since I was 4years old, could she adopt me as her child?

Joe Escalante: Adult adoption regulations vary from state to state but changing your name isn’t necessary in any of them. Sometimes people want to be adopted so they will inherit property. However, once you are an adult, it is easy for your parent to cut you out of any inheritance through a valid will or trust.
If you are in the will, you will inherit what it or the trust has for you.
If you are not in the will or named in the trust, you get nothing no matter how nice you are to the decedent.
Unless you challenge the will as fraudulent, or invalid.

Loopz: So she could adopt me?
And where can I get more information or call?

Joe Escalante: It depends on your state. Some states have forms, others make you file legal pleadings on official numbered paper, etc. Start googling Adult Adoption in your state and see what the procedure is for you.It depends on your state. Some states have forms, others make you file legal pleadings on official numbered paper, etc. Start googling Adult Adoption in your state and see what the procedure is for you.

Aimee: Is it necessary for all companies that register their name to also obtain a DBA?

Joe Escalante: These rules vary by state and county but in general, you need to do at least what your bank requires to open up an account. That’s the main concern for you. Talk to your bank guy, see what he requires.

Gilbert: yes i have a question on a no left turn i made. trees was covering the sign i dint see it i have court on wednesday how can i prepare my case i took pictures of trees

Joe Escalante: If you have a trial on Wednesday bring pictures of the situation (as close to it was on that day as possible) to your trial and if it is hard to see, this is great evidence. The court loves evidence. However, beware that the cop might say there were many other signs. If there are not, get pictures of the lack of signs as you approach the intersection.
If Wednesday is just an arraignment, you don’t need to bring the evidence yet. You will just be pleading not guilty and getting a trail date.

Sonia: I was disqualified from unemployment after one year. When I first applied I had 2 jobs, mon-fri full time and a part time on the weekends. I was laid off from the full time. They approved me, then after a year disqualified me for having my part time job when I let them know about it from the beginning. Now I owe them back the money. What can I do about this?

Joe Escalante: If you have proof that they authorized your unemployment and they knew all your applicable circumstances, then in my opinion it would be a violation of your due process rights, and abuse of process, and I would throw in a RICO conspiracy if they seize any of your assets.
Throw these buzzwords around and see if it gets them off your back. If not, consult with a lawyer specializing in unemployment benefits. You might have a decent case if they take your money without due process.

Danette: Does accusing black customers of stealing items recently purchased, cursing them, and taking their change on a regular basis qualify as grounds for a civil lawsuit? If yes, then what type of evidence is useful to prove your case?

Joe Escalante: You need to consult with a civil rights attorney in your area. If Blacks are treated differently than other customers, they have a problem on their hands. Evidence? Perhaps there are cameras in the store aimed at the registers where all the cursing and change taking goes down. Also, credible witnesses would be valuable. Good luck.

Michael: Our home is being foreclosed on by 2 banks…neither have given us information on to what to do about keys/access to home. We are removing all curtains thus leaving the windows w/o coverings and anyone can see home is vacant – are we required to cover the windows with newspaper or something ? ( honestly could care less doing anything for them ) Thanks

Joe Escalante: I wouldn’t worry about this stuff. If you leave the house after a foreclosure without the banks having to evict you in unlawful detainer court, you will be in the top 1% of customers they deal with and it is more likely that they would offer you a job as vice president than go after you for exposing their vacant property to whatever would happen from that.

Vicky & Dave: Are the gift annuity that you receive income for life a good idea?

Joe Escalante: That depends on your situation. They are legal, but your tax pro needs to give you the pros and cons. Thanks.

Shannon: How do you save a house thats starting in foreclosure? Bankruptcy?

Joe Escalante: Other than paying the mortgage the only thing you can do to save the house is to keep talking to your bank and keep attempting to work out new terms. This seldom happens but it may keep you in the house longer. Some lawyers will tell you that they can save it but they usually are just going to file frivolous lawsuits against your lenders and that does not guaranty anything but fees for them.

Patrice: Does owning a car or having a loan out on a vehicle count as an asset when considering Chapter 7 or 13?

Joe Escalante: A loan is a debt, not an asset.

Laurie: If my baby dad does not pay child support and has not seen her in a year can his rights be terminated? What if my Fiance wants to adopy her?

Joe Escalante: You should get a family law attorney and institute the process for terminating parental rights. You have to have this completed before the new guy can adopt.

Erica: I’ve paid for a home that’s in my deceased grandmother had obtained. How do I go about having the home put in my name when she has 7 children living. I’ve been living in it for 7 years.

Joe Escalante: If it was part of her estate, it had to be probated. The probate file is a public document. Go to the county probate office and look at it. See what happened. Maybe it wasn’t completed. If there was no will, the court will divide the property. If there was a will, it needs to be probated and the property will be divided according to grandmama’s wishes.
Prepare to open a can of worms my friend.
You can give all your info of payment to the court to suggest they give you the house if there is no will naming you to get it, but it will just be evidence. They will make the decision on state laws of succession and all evidence they gather.

Erica: How do I go about getting back child support that my oldest 2 children are due even though they are adults now?

Joe Escalante: Check the statute of limitations on this in your area. I believe there might be some info on my facebook page about S.O.L.s by state. Then you go to family court and file for back support.

Scott: A major publication has used an image of me, without permission, that I took myself and only uploaded to flickr. The photo is marked Copyright All Rights Reserved on the site. They used it on their website AND in print. The printed version was in their Australian magazine, but the company is a US company. What can I do?

Joe Escalante: You first send them a cease and desist. Then it depends on if you registered the photo with the U.S. copyright office. You should do that now, actually. Then you figure out your damages and I would need to see the photo and context to assess what other damages you might be able to recover. Send it to me and I’ll look at it and we can maybe talk about it on my show and get some action for you. Go to http://barelylegalradio.com/ click contact. and email it to me through there.

Alice: After the DA concluded his investigation into the homicide of a young man during a traffic stop, I filed a CA Public Records request for the dash camera videotape from police. No criminal charges.The City is a defendant in a civil suit brought by victim’s family. I was denied. An ideas?

Please be advised that you do not fall within the category of persons entitled to the dash camera video tapes under Government Code section 6254(f), which means ECPD has no legal obligation to produce them to you.

Joe Escalante: They are going by their interpretation of the statute. You can sue them in court and argue your interpretation and then a judge would decide who is right.

Dar: What is the legal/ethical was to force family to pick up their distributions/inheritance? I am admin/Trustee – family in combat, won’t pick up what was left to them so storage problems/costs etc. What time limit on notifications, what legal exit strategy? They’ve been notified since March 2011 and refuse. Distribution needs to be complete despite drama from recipients – it was Mother’s wish for them to have these items. Please advise.

Joe Escalante: You give them a reasonable time to pick the stuff. This is a notice accompanied by the instructions that you will sell the stuff and place the funds in an escrow account after paying the estate for the cost of the sale. If you have documented proof that they were on notice, you should be OK. In your county there maybe a form to file and serve for this exact purpose, so you might want to check the county’s web site or call down there and start asking questions.

Motley: In the state of South Carolina, what is the age a child has to be in order to decide which parent they want to live with in the case of separated / divorced parents?

Joe Escalante: The court will consdider the preference of any child. But there’s no official age. If the kid is 17 and a dum dum, they might not listen to him. A brilliant 3rd greater might be given more weight. It is all up to what the court believes is in the best interest of the child.

Marcos: Hi Legal Zoom. I was wondering about school loans. I have 6k in school loans that I am now required to pay back because I took a break from school. What advice can you give me to help me from bad credit. Paying back my school loans are not in the cards at this point in time.

Joe Escalante: Deferments are the only way to keep it from dinging your credit. The lending agreement will shed light on when you can defer payment. But who is going to read that thing? No one. So you call them and ask what your options are. These things are deadly. There’s no way out. Be on top of your interest charges. The amount owed could balloon and get out of control. Generally, they are not dis-chargeable by bankruptcy either.

Maggie: I’m starting up my own company, but i don’t have any office, (i m home office most of the time), went to the bank and they said i can’t open biz acc with my home address, so i borrowed my CPA’s address, will that be a problem for me in the future? i will still use my home address as mailing address, but on my check and every other things, i’ll have someone else’s address.

Joe Escalante: I would get a different bank. I always advise people to ask their bank what they need to open a business checking account before they do anything. Some banks make up arbitrary rules because they are paranoid about something stupid. Shop around. I already hate that bank.

Amanda: If I sell baked goods or crafts to friends and aquaintances to make a little extra cash, do I need to get a tax ID or license? I don’t expect to make more than $100 a month. Can I have a name for the “mini business”?

Joe Escalante: If I was the IRS I would say that you need a tax i.d., you need to collect state taxes and pay them to the State Board of Equalization regularly.
If I was the food inspector in your area, I would say you need a food preparer’s license of some kind. Can you get away with not having these things? People do it all the time. You think my tamale lady even knows what a license is?
However, if someone gets sick from her tamales. She’s going to have to go underground. So legally, the rules are clear. But in your case, few people would bother. Make sure you have insurance to cover any problems that may arise at the very least.

Marsha: When I make my current cleaning business an LLC, can I use one LLC for two different trade names, one for cleaning and one for lawncare? Can they then be covered under the same workers comp policy and combine it all?

Joe Escalante: You can have different DBAs under one LLC. Worker’s comp? Ask your workers comp broker that question.

Renee: i have a question, Im being threaten to be taken to court from my childs father for one thing or another but it really does’nt pertain to the child its just leverage something he use ova my head for the next disagreement we have. So what advice could you give me. Thanks

Joe Escalante: If you honor the court’s support decree you have nothing to worry about, except that you had a baby with a jerk. It’s just talk, like when he used to say nice things.

Sylvia: Hi..I have a corporation…and have just developed a marketing website..is it best for me to have the website name as a dba or an LLC under my corporation?….would really appreciate your advice.

Joe Escalante: Legally you could do either. This is the kind of question you need to ask the lady that prepares your taxes. She will know your situation and be able to give a quick answer that will fit perfectly for you. This is the kind of relationship you need to have with your tax pro. You’ve got simple questions like this? You should be able to pick up the phone and get quick answers. If you can’t, get a new tax lady.

John: Why does it cost so much money to file for a patent- and I’m not talking about a provisional. Can a lay person actually file on their own or does an attorney have to be invoved along the way? Thx

Joe Escalante: It can be done without a lawyer, but it’s hard. Get this book from Nolo Press and read it.
http://www.nolo.com/products/patent-it-yourself-PAT.html Even if you end up using a lawyer, you will spend less because you will know the process and can avoid costly delays from lack of communication.

David Pressman is a great legal writer.

Janice: We bought a motorhome from a couple and had them sign and notorize the bill of sale which had a warranty clause. When we got the title, however, it was in a trust. Does this make our warranty invalid?

Joe Escalante: It would be difficult to imagine a court allowing them not to honor their warranty just because the ownership of the car was in a trust instead of a personal name. If there is a problem with the vehicle, the issue is the car, not who owns the title.
You own it now.

Ronnie: How do I put a Property Lien on someones House?

Joe Escalante: You go to the county registrar and fill out their forms and serve notice. It varies from state to state, county to county, but this is the basic procedure. Good luck.

Gregory: If neighbors trees have branches overhanging onto my property, dropping needles, etc…do I have the right to trim those branches hanging over the property line…?Who is responsible for HIS tree failing on MY property, dwellings, etc..?

Joe Escalante: Generally, you can trim the trees as long as you don’t harm the tree. If you cause it harm, or make it fall down into his house, you could be liable for damages.

Chase: If i own an llc and i am sued can they go after the llc?

Joe Escalante: Yes. The LLC is liable for all debts or other liabilities it has caused. The question is usually can they go after you personally if the LLC is insolvent. That depends on the facts of the case, e.g., is there fraud? was it underfunded? That kind of stuff. Those are rethorical questions by the way. No need to answer them right now. :)

Joanne: Can I draw up a basic pre-nup and just get it notarized?

Joe Escalante: Yes. it would be more valuable than nothing. But what will the lawyers eat if everyone does that? Also, to be honest, a lot can go wrong. An efficient compromise might be to draw it up yourself and have a lawyer, experienced in pre-nups, look at it. You’ll save some money and have peace of mind.

Andrew: I want to start an NA financial business, so that I can use SEC regulations to govern my cash on hand… Basically, I want to be able to declare that I have 8 times more money then I actually do… Where do I start?

Joe Escalante: Sounds like shenanigans Andrew, but I would start with the state agency that charters banks in your area.

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October 20th, 2011 at 5:55 am