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Common Law vs Community Property, Plus More Legal Advice – Free Joe Friday 8/26/11

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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.

Sherri: I had a baby a little over a year ago by c-section. They did a terrible job and it was done very obviously crooked. I asked about it at the hospital and they assured me it would take some time but would heal just fine. It didn’t. Can I sue? Are they required to fix that? It has really been bothering me but I don’t know what my options are.

Joe Escalante: You need to get a consultation with a medical malpractice attorney in your area. If you can find one that will take the case, it’s a good one, if you can’t it’s a bad one. That’s how it works. Legally, they would be responsible for performing professional work governed by the licensing body in your state. But, when someone asks you to cut holes in them, it’s not possible to put it all back together without some collateral damage so it’s a question of degree. It will require the testimony of other doctors as expert witnesses. That gets messy.

LegalZoom: Check out Attorney Connect for help finding an attorney, Sherri:

Kelly: Good Morning! I want to start a foundation (in my sister’s name) to help underprivileged children with their education. It would be a nonprofit organization under section 501(c)(3). i am not sure how to go about setting this up (necessary paperwork, etc..). Can LegalZoom prepare the necessary documentation?

Joe Escalante: I myself have used Legalzoom to set up a 501c3 for the local Sons of the American Legion Post, and I can honestly say, it’s the best way to go. They will walk you through it. Make sure you are getting advice from a tax professional as well. Good luck.

LegalZoom: Get started here, Kelly: or give us a call: 888.381.8758

Mary Ruth: My friend wants to leave house & assets to her husband if she passes, but at his death have everything come back to her beneficiaries, not his family. How does she do this? Is a living will the only way?

Joe Escalante: It depends on if she’s in a Common Law or Community Property state. It also depends on how the property is owned. If it is a joint tenancy with right of survivorship, it passes directly to the spouse upon death. However, separate property, and her 1/2 of marital property could be left to someone other than the spouse with the proper documents. Sounds like a happy couple.

Fairhope: What type of lawyer is needed to get public information from a city … after they refuse?

Joe Escalante: Any attorney should be able to handle that, but I suppose a civil rights attorney would be especially equipped.

Rebecca: In a life estate in KY… whose responsibility is it for upkeep on the house? The person with the life estate, or the person who actually owns/inherited the house and has control of it after the life estate ends?

Joe Escalante: The person with the life estate generally must keep up the property. The person with the remainder interest, the “Remainderman” has standing to sue the the life tenant if these duties are neglected. The exact nature of these duties is often unclear, but would probably be judged by what a “reasonable owner” would do to care for the property. E.g. it’s not necessary to paint the house every year, but if lack of paint is causing permanent damage, it should be painted by and paid for by the life tenant.

Ashley: A friend was assaulted. Clearly a hate crime. Cops only charging the perps with assault 4 and menicing. What can she do to get the hate crime charge added to the charges?

Joe Escalante: The district attorney decides what charges to bring against criminals. You can apply public pressure since it’s an elected official (at the top at least), or you can ask nicely. If you want to bring civil charges, you can add civil rights claims on your case, but you can’t force the d.a. to agree with your assessment.

Chris: At birth my husband and I hyphenated our daughter’s last name. How do we go about changing it and have that change also reflected on her birth certificate? (CO)

Joe Escalante: I just went through this for a client and I have to tell you, legalzoom is the most efficient way to get this done. Did I make a ton money doing it? Yes. But that doesn’t mean it was efficient. I joke of course, but since the court has to get involved to change the birth certificate, etc. you would benefit from using Legalzoom. It’s a lot of paperwork, and really needs no legal advice, just help with paperwork.

LegalZoom: Here’s a link to our name change service, Chris:

Tracey: Can you file a lien if your ex stops paying spousal support?

Joe Escalante: If you get a judgment for non-payment and then a writ of execution, or the equivalent in your state, you can take that to the county recorder and get a lien on his deadbeat bachelor pad.

Matt: How can you be sure that you have a legal petition to get something on the ballot in the State of Illinois?

Joe Escalante: The Secretary of State in your state is supposed to supply a copy of the initiative and referendum handbook. After you create the petition you submitted to them for approval. So that should be enough proof. If they approve it, it’s kosher and you can begin. Make sure you have proof that they approved it.

David: Do you have any recommendations for dealing with a high conflict ex spouse and her overly aggressive and combative lawyer post divorce? The family law system seems to encourage and reward such behavior.

Rebecca: Been there with my husband’s ex, David. And my advice is to pray! LOL Good luck!

Joe Escalante: Rebecca has the best advice, but other than that, look for some father’s rights groups. But be careful. Some of those groups are just law firms in disguise. If you don’t have an attorney, you should get one.

Barbara: Is a handwritten will still legal in Texas?

Joe Escalante: Yes.
Just make sure it is all in the handwriting of the testator and testator is not crazy. If that is followed, you can write “All to wife” on a napkin and that could even be enough.

Jean: How do i get help for childsupport when the absent father lives n another state?

Joe Escalante: Are you divorced? Where was the divorce? Did you move away or did he?

Jean: never married. he moved away.
there is a court order for the child support.
Nothing never gets done is there any help? A single mother n need!

Joe Escalante: Go to the court where the support order was issued. File a complaint there for non payment. Get a judgment, and go after his deadbeatness.

Adam: If someone is going around telling people they want to physically harm you… What recourse do you have to get them arrested?

Joe Escalante: Not much you can do about this legally. He’s got a right to tell people his plans. The police wont do anything unless they feel you are in imminent danger, and people say a lot of things so the police cannot put a guard on everyone’s house that this happens to because then there wouldn’t be enough patrolman to prevent rapes and stuff like that. However, I would try to create paper trail with the police if you really feel you are in danger.
I doubt they will take a police report because there is no crime yet, but you can try and then follow up with a letter telling them what you fear. That way, if something happens, they will feel bad, and maybe be liable, who knows?
But be careful you could open yourself to some liability yourself if you start defaming this guy and it turns out not to be true. He has rights to.

Nick: Question: What are the benefits/reasons for copyrighting source code for our custom web service/product?

Joe Escalante: Because the U.S. government offers Copyright protection for all copyrightable expression embodied in computer programs, you should take advantage of it. It’s cheap, and if there is an infringement you don’t have to prove actual damages, which is a mess, you get to recover statutory damages which are often quite high. You can also recover attorney fees. Without registration, it’s hard to get a good lawyer to take your case. But remember, protection is not available for ideas, program logic, algorithms, systems, methods, concepts, or layouts.

Cassandra: Have small business; One of my clients is attempting to damage the good name of my business without merit. What is my recourse?

Joe Escalante: If someone is causing harm to you be spreading info that is false, this would be grounds for a defamation lawsuit against them. You should consult with an attorney that has some experience with defamation cases. Remember, in court the defendant will try to establish that what he/she said is true. This can often be more damaging that settling it another way.

Emily: Is there such a think as ‘reverse’ religious discrimination in the workplace? For example, if my co-worker only gives good promotions and raises to other co-workers who go to her church, and this can be proven, is there any legal re-course?

Joe Escalante: This is plain old discrimination if true. It’s not any kind of reverse discrimination.

Spangler: I am an SDEC member. I have a provisional patent on The Slippy. Since the simplicity of the product, will a utility patent protect it?

Joe Escalante: That is a great tool but I’m not sure it will pass the patent examiners scrutiny as to being a non obvious improvement over the “prior art” which would perhaps be the “plastic bag” you mention on your site. It’s a tough one. It’s no slam dunk for sure. Good luck.

Dave: If I was fired from a job for a reason that was not correct after working there for 60 days, When they say they can fire you for anything within 30 days, do I have any grounds for wrongful termination. It was a cell phone sales job and district manager basically kept trying to get us to rip people off. Customers loved us and have since quit going there after they fired all 3 of us. My paper said refusal to be coached, but I have emails from my boss saying she was going to work with me, but she never did. The one time I saw her after the emails she finished a sale and left. Next time I saw her she simply fired all of us. She never worked with me, gave me write ups or chance to improve had she worked with me

Joe Escalante: You can sue on a contract, if you had a contract. If you didn’t and you were wrongfully terminated, you would go to the local EEOC agency, Civil Rights Commission, or an employee rights attorney.

However, from your fact pattern, I don’t see a great case here. In general, your employer can fire you for any reason unless it’s one of the prohibited state law reasons like discrimination, or if you went to war or jury duty and got canned for that.

Melea: how can I do my own divorce. non contested, 3 children, property. I live in tn. could I find help at a college that offers law

Joe Escalante: If it’s uncontested you will be best off using legalzoom’s services to help you through the process. This is a no brainer.

LegalZoom: Here’s a link, Melea:

Hilairy: I have CA. divorce papers that need to be signed from the other party, but he refuses until he gets his things which are clearly stated in the papers that he will get…is there anything that can be done for him to sign sooner do to the person filing is on deployment and cannot get to storage for sometime but needs the papers signed?

Joe Escalante: You could do things that would be bad for him, like contesting the divorce, but that wont speed anything up. If he’s refusing to sign without legal grounds, there are remedies but they will make things grind to a hault.

Hilairy: Thanks it is going to be another 5 -6 months before she can get back from deployment and get to the storage in TX and have them shipped to CA….

What would be some of the grounds, his lawyer is just being spiteful and has tried to intimidate her for some time they were only married for 4 months before they separated…

Joe Escalante: That’s what lawyers do. She needs a lawyer if she wants to fight this kind of battle. I would have to read the facts to tell her anything of value in this case.

Lucy: I was fired from a job in December 1999 and treated like a criminal with no explanation of why I was fired. I did receive unemployment with no contest from that employer, but I could not find another job in my city and I had a feeling something was being said about me,but could not prove it. Seven years later I found out that the Doctor I worked for was telling employees and who knows who else that I was embezzling money from him. That is NOT true and I did not pursue because I had a job and did not want the hassle. I am unemployed again and having problems getting a job again, I know the medical field does not forget these rumors. Can I still file a slander law suit? I live in Michigan.

Joe Escalante: I believe the statute of limitations for filing defamation suits in Michigan is 1 year. You’ve waited too long. It would be unfair to pop out of the wood work with a lawsuit after 12 years. What are the damages? A court would think there are very few if you got by this long without suing.

Sue: Not legally separated, he is paying for my rent and a few other bills, for the last 6 months. Ok. But he could stop. Is it wise to get all of this legally done so that he will have too? He has the money to get this done by an attorney, but has not, as I have mentioned it to him many times…. Lady in Hawaii….

Joe Escalante: You could draft a contract that required someone to pay your bills, but it would not be valid unless you put in the contract what you are giving in return, and it would have to be something of value. You need a lawyer to draft a real support order and get it certified by the court. That way if he stops, he’s in contempt of court.

Patti: I live on a private road within a subdivision (it is private because when the rest of the sub was paved, a section stayed dirt road). My house sits in a low part, between two hill sections of the road. When we get heavy rains, water and dirt from the road fill up the vacant land next to my property, and has on other occasions flooded our property and our home. The problem is the vacant land owner refuses to maintain his property to keep ours from flooding. Do we have a case against him?

Joe Escalante: Yes. This could be a nuisance by interference with a neighbor’s quiet enjoyment. You have a legal right to enjoy your land.

Billiam: Can I use the picture of someone in a cartoon on youtube? Roger goodell nfl commissioner? does it matter if their a celebrity? Can I use their likeness?

Joe Escalante: If they’re a public figure and you say nothing untrue you’re fine. If you say stuff that is untrue, it must be an obvious joke and done without malice to harm the person. You have a right to make fun of him up to a point. What is the point? You will find out when they file a lawsuit against you for defamation. If you followed my instructions you will win, but that might be $50,000 in legal fees later. Call my radio show this Sunday on KTLK in L.A. and we can go over it at length. sunday at 5 pm 877-520-1150

Selena: Any recommendations for a social media agreement / use consent to use for employees and 1099ers?

Joe Escalante: Anything for Selena! I would look at other successful company’s agreements. Compile what you like about each and make one that suits your needs. Then show it to an attorney and see what they think of it. You’ll save a lot of money that way.

LegalZoom: That’s it for Free Joe Friday! Thanks for joining us and thanks to Joe for his sage advice! Have a great weekend and don’t forget to enter our sweepstakes–check out the Sweepstakes tab and enter to win a Samsung Galaxy and a copyright filing:

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