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Employee or Independent Contractor? And More Free Legal Q&A – Free Joe 12/11/12

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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.

Richard: Is it best to formally copyright a new book being released on Kindle? What are the advantages and how do you do it?

Joe Escalante: The advantages are that if there is an infringement, you don’t have to prove actual damages, the congress has approved “statutory damages” to penalize infringers. This is easier and less expensive to establish than adding up how much you think you were damaged. And you can recover attorney fees so it’s easier to get an attorney to take the case on a contingency basis. All this for about $30.00. Do it.
If if seems daunting, use Legalzoom’s service to make sure it’s done right the first time. Congratulations on your book.

LegalZoom: Here’s a link to our copyright info, Richard:

Mike: I have a newly formed non profit, which brings historical programs to schools and institutions. Our historians get compensated per program they perform, but are only scheduled for days they present (2-3 times per month). do I define them as employees or per diem employees? and do I have to do full payroll? and must they recive benefits?

Joe Escalante: You need a good business accountant / tax advisor more than a lawyer for this. Legally, it’s sometime better to keep them as independent contractors but from your scenario, it sounds like they would be employees because they don’t choose their own hours. It’s a fine line. Do whatever your tax pro says and make sure you are in compliance with your state’s labor commission regarding part time employees and you’ll be fine.

Ezella: Me and my sons father has been seperated since 2009. He has claimed my son on his income tax more than one time. I called IRS and they told me since we are still married, he is entitled to do so. I was wondering is that true or not? Also his mother has done it also. Thank you.

Joe Escalante: That’s a tax question for Gary on Thursday. Click the link below.

LegalZoom: Here you go, Ezella: See you on Thursday!

Debbie: The parent that has full custody of child and child is not attending school does that parent still recieve child support?

Joe Escalante: The child still needs to eat and not be naked. School is theoretically free. I don’t see how this affects support needs. However, it sounds like custody could be challenged since the child is being raised as a hillbilly.

Frank: My question would deal with child custody. Can I be denied custody of my son simply because I am an ex-felon who has not been in trouble with the law for over 8 years since my release and the crime had nothing to do with abuse of children or any harm to a child, and because I suffer from PTSD due to being raped by a priest when I was 15? The social services worker believes just because I spent time in prison and suffer from PTSD and also she believes the outright lies the mother of my son has spewed, which can all be proven as lies, she is seeking to deny my getting custody of my son and is wanting to give custody of him to the mother’s foster cousins. (The mother was a foster child and these are her foster cousins). The case is out of Ohio and I live in NH. It has already been proven the mother has been both mentally and emotionally abusive to my son, even to the point of never telling him I am his father, where he is five years old and now just found out I am his real father.

Joe Escalante: The decision is made after the court reviews evidence presented by both sides. It is certainly not illegal to have custody of a child as an ex-con. The decision will be made according to what the judge believes is in the best interest of the child. You will both have an opportunity to make your case and slam the other side. However, if you think she’s going to slam you too much, you might want to point out that it is in the best interest of the child to have a positive view of both parents, so you are not going to engage in that. Good luck.

JawRa: What are the main business documents or forms everyone should have to run a decent business?

Joe Escalante: You can run a decent business with just a D.B.A. This allows you to cash checks made out to your company. This would make you a sole proprietor. If you have an employee, or several, you will need a Employer Identification Number, or EIN.With some liability insurance, you could do business this way forever.
If you take on a partner or investor, you would be wise to have a partnership agreement in writing.
After this, consult with a tax advisor to see if incorporating or forming an LLC will help you pay less taxes. Good luck.

Darlene: My truck was impounded due to an error. It stayed until my traffic court date. I was found not guilty on both charges. . The judge told me to take my dockets to the pound. I called the pound informed them that I wouldbe there to pick it up dockets in hand. He mentioned that it was on the auction list. When I arrived I was told that it was sold at auction that morning. It was impounded by mistake. The pound feels that they can do anything. I need them to compensate me for my loss.

Joe Escalante: The pound contracts with the government. The government gave them permission to impound the vehicle, theoretically. So they make their money storing it. If you don’t come and get it, they have to sell it to stay in business.
If the mistake you are talking about was the pound’s, you have to take them to court to recover your loss.
If the mistake was the government’s, i.e., the police, your grievance is against the police, not the pound. So it all depends on who made the mistake, and whether the mistake can be proved or if it is just your opinion it was a mistake.

Robert: What is the least expensive route to fully “Legalize” a start-up business?

Joe Escalante: Here’s what I wrote to JawaRa earlier, it’s the same advice:

You can run a decent business with just a D.B.A. This allows you to cash checks made out to your company. This would make you a sole proprietor. If you have an employee, or several, you will need a Employer Identification Number, or EIN.With some liability insurance, you could do business this way forever.
If you take on a partner or investor, you would be wise to have a partnership agreement in writing.
After this, consult with a tax advisor to see if incorporating or forming an LLC will help you pay less taxes. Good luck.

Wanda: Can a deceased lady son take over her mortgage payments and put the house in his name even if his name is not on the house?

Joe Escalante: No. The property must go through the probate process.

Geoffrey: Can you be sued for copyright infringement if your album has the same title as somebody else’s album but the songs are all original?

Joe Escalante: You can be sued, but you wont be defeated. A title of anything cannot be copyrighted. As long as the rest of the album is not designed to fool people into thinking there is a connection between both albums, you will win. However, intellectual property bullies are all over the entertainment industry and just because the law is on your side, it doesn’t mean that you wont be ruined by a frivolous lawsuit.

Sabrina: Dhs made no effort to return my child I lost hope and siend away my rights is ther ane thing I can do at this point

Joe Escalante: You need to get a consultation with a good family law attorney in your area to fight this. You wont be able to do it on your own, I’m afraid. At least get a consultation.

Dianna: Is it necessary to have a will for insurance policies that have a beneficiaries if you don’t have anything else of value

Joe Escalante: That’s a good point, but make the will anyway. It’s cheap.

John: Hi Joe. I have student loan debt from more than 10 years ago. I have absoultely no chance of ever paying them back I don’t earn enough but I seem to have exhausted all options, is bankruptcy a choice?

Joe Escalante: Bankruptcy doesn’t cancel student loans. Sorry.

Kandy: How does a shareholder of a s corp benefit? I feel like I am being double taxed. How do I decipher what write offs are personal and which is business when I am the business ?

Joe Escalante: This is a great question for Gary the tax guy on Thursday.

LegalZoom: Here are the details for Ask the Tax Pro, Kandy:

Lisa Ann: In a divorce in Missouri, does the wife get half of her husbands pension after 21 years of marriage? I already split my pension with him 15 years ago.

Joe Escalante: I say yes.

Vivien: My husband and I have been waiting for 2 years for an interview on an adjustment of status for him (he’s Egyptian) and have written to our congress person and done several info passes… What other courses of action Can we take? He has an employment authorization but renewing it every year is tedious and his mom is getting older and I’ve never been able to meet her or his family :( do we just have to keep waiting?

Joe Escalante: The only thing I could suggest is to hire a somewhat powerful immigration attorney.

KC: Hey Joe do you happen to know what elements are required for a judge to to grant a California Probate guardianship (custody and estate) to a maternal grandmother over the objections of the father who is willing to care for him?

Joe Escalante: “Best interests of the child.” It’s always that.

Aaron: If I receive some military service connection disability Have gotton hurt on the work place can I get disability for those injuries

Joe Escalante: If you have new injuries caused by work at the new job, disability should cover that. You probably can’t double dip though.

Misael: Hi joe,
What are the proper legal procedures to follow when terminating business under a corporation not involving bankruptcy? By the way, I’m in California. Thank you!

Joe Escalante: Look at the corporate dissolution services offered by Legalzoom and be sure to keep your tax pro on board the whole way.

LegalZoom: Here’s a link to our dissolution service, Misael:

Debbie: How does a living trust work? I’m trying to make it simple for my two children and avoid inheritance tax. I live in Texas.

Joe Escalante: You’re not going to suffer an inheritance tax unless your estate is worth millions. You do it to avoid probate. Probate puts your property in a holding pattern while they search for creditors that might have claims against you. The living trust doesn’t die, so it avoids this crap. Use Legalzoom’s service, or at least check it out. I’ve used it several times.

LegalZoom: Here’s the link, Debbie:

Yuri: I was offered a job by a competitor to my previous job, took the offer, and was hired. Two weeks later, my new employer tells me they overhired and let me go. Can I qualify for unemployement?

Joe Escalante: Sounds to me like you were fired. That’s what unemployment is for.

Laurie: Question: Can a will be ‘revoked’ with a simple signature / filing with attorney who drafted it, while a living trust is established?

Or is there a better way for newlyweds to protect one another, until a living trust is set up, considering their prior wills don’t mention the other. I know there is a ‘pretermitted spouse’ thing, but we probably don’t want to deal with that in the event something happens.

Joe Escalante: In most states, a will can be revoked with a writing, witnessed by two disinterested parties and thrown in a drawer.

Melissa: Is there legal paperwork involved when you choose guardians for your children should anything happen to you & your spouse? Or can you just create your own document & sign it?

Joe Escalante: You just create your own document and sign it. Depending on the state, you should have it witnessed by two disinterested parties. If you make a trust, there’s usually a section for that stuff as well.

Stanley: attorney Joe, My mother had home she contracted to buy in 1996. She passed away 4 yrs ago and since then i have been maintaining that property, payingtaxes and loan bill. she left no will. The Home is in Illinois. What documents,forms and papers do i need to Probate this property and to ask court to name me administrator of estate(the property is all of the estate)? Is there another route or way i can have title/deed of property put in my name? I have 2 Brothers and 2 sisters but they not interested in property at all and have had nothing to do with it ever.Pleas ereply and Thank you.

Joe Escalante: You need to file a petition to probate the estate with your county. Unless you want to put yourself through a year of court associated hell, hire a probate attorney and pay him from proceeds from the house.

Robyn: Hi Joe…….. Lost my job due to Hurricane Sandy and my income has fallen well below what it was prior to this happening. I have now become 2 months behind on my mortgage and tried to work with the mortgage company and got no where. There attitude was one of oh well. Not only did I lose my job, my home sustained damage from the storm. I have had an adjuster to my home and am waiting for his re
turn for more pictures and measurements. As for FEMA, I have no use for them either. I am at what seems to be the end of my rope. I only want my job back, which may not happen as it was under 4-5 ft of water, my home repaired and my credit not to suffer anymore then it already has. It is the holidays and don’t even know what to do.

Joe Escalante: This is awful but it sounds like at least you had insurance. Stay on top of them.

James: Is it possible to sue Apple if I got into an accident using its knowingly flawed Maps navigation app?

Joe Escalante: Yes. I’ve heard worse lawsuits. However, you can only sue for certain and provable damages. And there is the doctrine of contributory negligence that could substantially reduce your award depending on whether your judge is Apple or P.C.

Antoine: If you’re terminated from your job with no prior warnings or write ups and didn’t sign any papers or have an exit interview, is that wrongful termination?

Joe Escalante: The best thing to do is to go over this with someone at the State Labor Commission. They actually answer their phones and talk to people. In general, if you don’t have a contract, an employer can fire you without cause at any time. There are some rules about paying you any unpaid wages within a certain amount of time but that varies by state. There’s not a lot here unless you were fired for being a certain religion or other protected group like sequential hermaphrodites.

Pamela: Hello i have a question for Joe, my 12 YR> old daughters father has’nt seen her for 2 years not counting the 2 time we ran into him a our local wal-mart. She’s at the point right now that she caan’t even stand to see him and when she does she is very agitated afterwards for him turning his back on her. can i take him back to court and get his rights revokrd because he has already ruined the way she will ever feel about him and she told me she hated him.

Joe Escalante: You can always petition the court to change custody or even terminate parental rights. Full termination would require consent from the father however, unless he becomes a mass murderer or something.

Susan: I need to disown my son set up a trust for my grandkids , i live in florida , what is the cost?

Joe Escalante: If your son is not a minor, just make a will or trust leaving things to your grandkids and specifically mention that anyone else not mentioned gets nothing. You can spend a lot of money at a lawfirm to have them do this, or you can do it yourself with Legalzoom’s help for relatively little. Click below:

LegalZoom: Here’s the link, Susan:

Brent: Not sure if you deal with this or not…but if you file for an all out bankruptcy.if you have a co-signer will that effect them. If so can you exlude certian things from the bankruptcy

Joe Escalante: Your assets will be handled by a bankruptcy trustee. Creditors will have the right to go after the co-signer for the debt on which they co-signed. Depending on the type of bankruptcy, yes, certain things like your home can be excluded.

Tammy: Is it a florida law that you have to give a 30 day notice to landlord or you lose your deposit, had some very bad neighbors destroying my things drug and drinking started to feel unsafe so moved but lost out on a lot of money deposit and 10 days rent

Joe Escalante: That depends on the facts. If the warranty of habitability has been breached, meaning the place is unlivable, you don’t have to give full notice. However, this is fact based. You have to have evidence that can back up your story in court.

Renee: Hi Joe, I have received conflicting legal advice from two different attorneys regarding foreclosure. I would like to KEEP my house. My income currently is not what it needs to be to do that.. I am dealing with some issue’s with my 4 yr and looking to stall my foreclosure until I can get him adjusted and in school…a few months yet. I do need to go bankrupt as well. What is the best way for me go for my situation.. BK first or last? I was served amended papers for motion to foreclose in Nov, the original papers came in Feb.

Joe Escalante: Bankruptcy will stall your foreclosure but it wont prevent it from going through eventually.

Lesa: Where can I get a “fill in the blank” standard form for a will and testament for indiana and kentucky?

Joe Escalante: You could probably find one on the Internet or at an old timey stationary store, however, the last one of those I probated created problems because it was not updated to current state legal standards. Use Legalzoom. That’s my advice. Click below.

LegalZoom: Here’s the link, Lesa:

Kenneth: If amounts from a divorce mediation agreement are not paid, am I entitled to accrue interest on those amounts from the date of the agreement? Thanks for your reply.

Joe Escalante: That sounds reasonable but it would depend on the wording of the agreement. If there is no mention of interest for late payments, a judge would not be prevented from awarding them as reasonable.

Peter: How should I do my taxes for the first year launch? Not much but I still have receipts and expense materials that need to be deducted.

Joe Escalante: Great question for our tax expert Gary on Thursday. Click below.

LegalZoom: Here you go, Peter:

Joseph: Is a handwritten will that has been notarized legal in court?

Joe Escalante: Depends on the state, and whether the state requires witnesses. Notaries are not witnesses. Wills usually require witnesses and not notarization. And the hand writing we’re talking about has to be in the same hand as the signatory. So it depends.

LegalZoom: That’s a wrap! Joe will be back next week with more free legal advice, so join us then and be sure to check out Barely Legal Radio w/ Joe Escalante in the meantime!

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December 13th, 2012 at 5:44 am