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How Can I Get a Divorce When My Spouse Won’t Sign? And More Free Legal Advice – Free Joe 9/28/12

with 2 comments

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.

Tricia: How do i get a divorce and my spouse won’t fill the papers out and i don’t have much money? Please help i moved on and want to be happy?

Joe Escalante: That is called a contested divorce. It happens all the time. You file, you serve him, if he doesn’t respond, you go through the process and he is divorced by your terms. Read this book to get some info on how it works in your state:

Austin: Joe, I’m a little early on the question, but I am curious about the legitimacy of the commercials I’ve seen lately claiming they can settle back taxes for a fraction of what you owe? Is this legitimate, or are there certain restrictions? Thanks so much!

Joe Escalante: It’s possible, some lawyers are good at it, and some accountants are good at it. It’s also possible to be over charged for it, or to have someone exaggerate what they can do in this area. Best thing to do is consult with a few, then ask for referrals so you can verify with some actual clients and see if they can really do what they say.

Beverly: I am wanting to start a no kill shelter and i need to know how much it will cost to get a 501 c 3 ,how long it usually takes to get it and what i need to do to get it, live in Madisonville KY.. thank you and God Bless

Joe Escalante: You can check Legalzoom’s prices by clicking the link below, if you want to do it yourself. It would cost at least $5,000 for me to do one for you as an attorney, but there are cheaper lawyers than me, especially in Kentucky, and some more expensive ones. It takes a few months. There’s a lot of writing and budget preparing that needs to be done and approved by the state. Good luck.

LegalZoom: Here’s the link, Beverly:

Tonia: Are there times that IRS will write off tax debt for individual filers; specifically debt that is older than 5yrs?

Joe Escalante: In general, the IRS doesn’t forget. They are like elephants. In fact, some of them are actual elephants.

LegalZoom: This is a great question to ask Corporate Tax Network’s Tax Pros, who are here on Thursday mornings. Come check it out:

Norma: So….when doing a utility patent search :
Hypothetically my invention is a headband that massages the scalp. So I type in the search bar for “headband AND massage” and it resulted in 0 results. Could I rest assured that
there weren’t any , and conclude my search?

Joe Escalante: It’s a good start, but their data base probably isn’t perfect. Patents are a serious business and eventually it’s going to cost you thousands so it’s worth it to spend 4 or 5 hundred on a consultation with a patent attorney to begin. It will save you hours of time that could be wasted going in the wrong direction.
On the other hand, a provisional patent is not that expensive or complicated, and can be done through legalzoom, so you aren’t risking much by just going for it. The non-provisional part is where it gets serious.

LegalZoom: Here’s a link to learn more about our provisional patent service, Norma:

Cindy: jan. 22, 2009, my son, wayde, was 6 weeks from being 21 and in the bar where i was working a 55yr man, Don, was stabbed 1 time, in the chest above the heart, he went to cardiac arrest(?) as he tried to stop a fight, he was holding back another 55yr old man, jimmy, who was intoxicated and full of rage, jimmy called my son a punk and shouted threats as he leaped from his bar stool towards my son.
my son pulled out his pocket knife, just a small common pocket knife, i know he had no intentions of hurting anyone, he waved it around as he backed towards the door to leave. i also headed to the door to hurry my son out, but before i could reach him, Don collapsed on top of me with such force i was shoved onto my son, to the ground, 3 or 4 more people fell on top of Don. Nobody knew he had been stabbed, nobody saw my son stab him, but they saw him pull out a knife. i told my son to leave, the police were being called, somebody picked Don up and set him n a chair, nobody noticed any blood, i don’t remember ever seeing any blood. somebody screamed..’call an ambulance, Don has been stabbed’ i looked at my son and said ‘you stabbed him?’ my son didn’t know he stabbed him and has no recollection of stabbing him, but there was a little blood on his knife, his knife scraped a girls shoulder, the ems checked her out, bandaged it. the rowdy cowboy was outraged and i made my son leave. i called 911, i hung up the phone and turned around to see the police already there and covering Don with a yellow cloth which caused everyone to scream, cry and shout “murder” to the police, a bunch of intoxicated customers, each one taken downtown for statements that were each different and none tested for BAC, the rowdy guy came close to my face and said i better help police find my son or he would find him and kill him, and me too. a policeman took me by the arm and hurried me out and locked me in his police car for 40 min while they questioned witnesses and talked to the news media, giving wrong info to the media, it was all over the news for 2 days. my son arrested that night for murder. my family could not afford an attorney so one was appointed. Miss Stephannie Boyd. She did nothing to defend my son, she did not talk to any witnesses, she did not even want to hear what i had to say. i tried calling her several times the first year my son was locked up with 250,000. bail, not a flight risk, his lawyer didn’t even try to get a bond reduction.i have logged many unanswered calls to his lawyer, my son sat in county jail for 2 yrs and she visited him 2 times. 2 weeks before the finally reset, reset approaching trial, Miss boyd finally returns my call and asks me to come to her office, (she is a divorce lawyer) she hears my story, the TRUE story and says she won’t put me on the stand because she says i’m ‘candy-coating’ it for my son. i tell her i am telling the truth and i want to see the ME report, she says (this i quote, i’ll never forget it) Quote “it don’t matter, ALL that matters is Don is dead and your son had a knife!” Unquote. I told her the ME report could tell a lot about a knife wound. she said “yeah, that wasn’t no little pocketknife your son had” but it WAS!! i saw it, everyone saw it. Miss Boyd never investigated the case, she based all her information from the DA files. she failed to fulfill her ethical obligation to my son, i begged my son not to let her sell him out, i had legal aid help with a letter asking her to step down and let a different attorney represent my son, she ignored the letter. (i have a copy) Miss Boyd convinced my son to plead guilty for a lighter sentence because she was sure he’d lose in trial and be sentenced to life, she got the DA to give my son only 40yrs if he plead guilty. we don’t even know whose blood was on his knife!! the day of his sentencing, Miss Boyd ordered me out of the court room because she said I could not go on the stand. My son had insuffient representation of council. I have seeked advice from some high dollar criminal attornies who seemed confident they could save my son, self defense certainly nothing more then manslaughter at the most! NOT MURDER! My son knew Don, he liked Don…. my son has been locked up for almost 4 years, his release date, jan 22 2049. with out much money, how can I get this case reopened and handled fairly? and yes, there is more to this story, but i had to make it as short as i could. hope to hear from you mr. Escalante.

Joe Escalante: This is a terrible story. It sounds like you are doing every thing you can do and your son is at least blessed to know that someone is working hard to get him justice. From hearing the story, it sounds to me like you could make some progress by focusing on getting the blood on knife tested for DNA. I’m sure you’ve heard of the Innocence Project. This is where they seem to have success. You pick one thing, “Test The Knife,” and you work to get a judge to re-open the case to do that one thing. Even though there seems to be many levels of injustice, you may be overwhelming people with too much detail when you could have more impact with the one thing.
Maybe the mantra of “test the knife” will get people’s attention.

Bes: Good Morning Mr. Escalante,

I am looking to start my own makeup line using a private label company. I have an LLC but I feel like I am missing something; What protective actions should I be taking before I launch the line?

thank you.

Joe Escalante: Make sure you have some liabilty insurance, a good relationship with your bank, and any city or county permits for running a business that may be required in your area. You’re on your way.

Brian: do i have the right to sue if my kid hears sexual jokes on the bus my son is only 7?

Joe Escalante: Yes, but it would be difficult to get a lawyer to take the case without paying them tens of thousands of dollars because it’s a loser. To recover something for the attorney fees, you need certain and provable damages. Does society want to use the court system to bubble wrap children from all harm? Probably not. However, if the bus driver is telling these jokes, you may have a case.

Golden: Hello Joe, My name is __________,I have a very serious issue. I presently have a epic concept that I have many Investors on board to finance with monies upward of a million dollars USD, Of course I don’t have that type of cash but I do want to purchase the patent to my concept on my own, preferably without their investment money as I dont want to merge the two nor do I want to share the licensing
on so…mething I worked so hard to create, In the case that I do accept a buyout I want to solely own the licensing rights to my concept as this is very important to me due to the value and projected value of this concept as a whole. Lets just say if my concept was Facebook with a number of add-on apps how would I go about getting it properly patented and approx how much should I be prepared to pay. Of course im far enough along in the game that I have reached out to quite a few patent attorneys but honestly the more that I talk to the more confused I become because my answers have been so varied. Any help or guidance on this Intellectual Properties matter would be greatly appreciated. thx

Joe Escalante: It sounds like you want people to invest money, but hold back much of the value in what they’d investing in. That’s what I see when I read the above from an investor’s standpoint. You might have to loosen your demands to really attract serious money.
Also, your understanding of patents is incomplete. For example. The concept of Facebook is not really protectable. Facebook’s enforceable patents are more in the line of feature’s that they invent to distinguish their unprotectable product from other unprotectable products. They enforce patents on things like the following: “ Architectures, systems, apparatus, methods, and computer-readable medium for providing recommendations to users and applications using multidimensional data.” My advice. Pick one lawyer and stick with him or her and get this project off the ground.

Charmane: Good afternoon,I would like to know how to go about getting a record exponged.

Joe Escalante: You can file for it with the State Attorney General’s Office, but if you really want to get it done, you will benefit from the help of an experienced criminal defense attorney. This is what they do. Its not automatic because it must be balanced against society’s right to know who has a criminal record.

Patricia: I work in the medical field. I am a CNA. Can my employer make me stay over my eight hour shift. Then make me leave early or shave off hours to avoid paying me overtime?

Joe Escalante: No. You might want to make a claim with the State Labor Commissioner to put a stop to this practice. Or consult with a labor attorney to see if there’s a class action lawsuit that might be warranted.

June: I need to know who to call when someone is in contempt of court?

Joe Escalante: You petition the court to find the person in contempt. It’s called a Contempt Petition in most states. Call the clerk to get started if you don’t have an attorney.

Donna: I need to get a QDRO to claim my portion of my ex-husbands retirement. Where do I get it from? …Thanks, Donna

Joe Escalante: If things are amicable, you could probably draft a QDRO yourself, perhaps using a form accepted by the administrator of the retirement plan. However, if things are nasty, you will probably need the help of an attorney that specializes in retirement benefits.

Christina: Can you file a sue for been left on a bad street I am a person with disability I was left on St. Paul Street University and something a bad neighborhood by my birth sister and put a case against her She knew I was Special needs

Joe Escalante: You will only be successful if you can establish certain and provable damages. In other words, how much money did this act cause you, or how much were you physically hurt, and how much did that cost you? If you cannot determine that, you do not have a lawsuit, just hurt feelings. Sorry.

Berry: how can i get the process started on a business license for my consulting services- ive been doing probono hr & marketing work since i got laid off- but i want to get all the proper paper work done with federal tax id and socal license…thanks in advance!

Joe Escalante: Legalzoom can help you with a tax i.d. Licensing and permit are done at the local level. Go to your city’s web site and they should have a business permit section. If you live in a turd town, you may have to go down there and see what permits you need to run a business.

LegalZoom: Here’s a link to get started with a tax ID:

Dave: In a criminal conviction, what recourse are there after the 3rd appeal failure, in efforts to gain a retrial?
(This is a case of innocent people convicted, not just efforts to retry guilty people)

Joe Escalante: Criminal procedure, for non-federal crimes, is a state issue so it varies all over the country. The criminal defense lawyers in your state could answer this in a more practical way than my faulty notions of constitutional rights.

Ava-Marie: military retiree retirement…is is automatic that the spouse gets half? divorcing after 25 years and was married to the same person throught the 22 year military career. already found out that ex spouse is NOT eligible to get ID card for medical due to ex spouse has Kaiser and has been using it for the last 5 years.

Joe Escalante: The USFSPA (Uniformed Service Former Spouse Protection Act) does not automatically give a former spouse any of the member’s retired pay. Rather, the law permits a state to treat military disposable retired pay as marital property and therefore divide it in a divorce action. So this leaves it up to the state to divide just like other marital property in a divorce.

Thanh: Is education obtained during the duration of a long marriage ( one spouse is supporting the other through schhol) consider community property

Joe Escalante: The education itself is not considered community property, but the earning capacity it represents and the sacrifices made by the spouse to get it are taken into consideration when crafting support orders.

Yasin: Can you sale a product and service under one name? My business is a corporation but I have a product and a service under this name, is that ok? is it any additional paperwork needed to be file with the state?

Joe Escalante: That’s fine from a legal stand point. Check with your tax lady, or Gary here at Legalzoom on Thursdays to see if there are any tax issues to think about.

LegalZoom: Gary is here on Facebook Thursday mornings to answer tax questions:

Stanley: My partner and I recently started an LLC company and we have workers comp exempt cards. What would we need to do if we decide to hire employees in the state of Florida?

Joe Escalante: You should consult with an attorney experienced with working with Florida’s office of Chief Financial Officer for stuff like this. It’s too tricky for this California attorney to advise you on.

Michelle: Is it possible in the state of Alabama to have a father’s rights taken away for abandonment if he hasn’t seen the child since he was 14 months old and he is now 8 years old. He has never paid child support and I want his rights taken away so I can give my son my last name!

Joe Escalante: You have to get the process started by petitioning the court where the child lives to terminate the parental rights of the absent parent. It can be done but you have to start there.

Alon: Joe, I have an idea for a new product. What do I do to protect it so no one can steal it. I have nothing on paper, just the idea in my head right now.

Joe Escalante: Look into Legalzoom’s info on filing a “provisional patent.” This will give you some protection for a year while you figure out if you want to spend the money to file a regular patent, which requires an attorney. Good luck.

LegalZoom: Here’s the provisional patent info, Alon:

Laura: my husband has been paying alimony to his ex for 13 years, do you think their will ever be a law limiting the time that alimony is paid? I read a few months ago of a gentlemen who was attempting to make changes to this, i dont have a problem with alimony allowing the spouse to get back on their feet for the first two years, but a lifetime??

Joe Escalante: You can always petition the court to change the order based on new circumstances. That should shake things up.

Lanie: If someone commissions you for a design to use on a for profit product such as a t-shirt, I know I can sell that design for a fixed price but can I let them use it for a royalty type fee so I maintain ownership of the design and if so, what’s the best way to determine a fair value for both parties?

Joe Escalante: The fair value will be dictated by the market. The market pays people the least amount of money they are willing to work for. You can make any kind of royalty deal you want, but you are then going to have to police the royalties and this may not be worth it for one t-shirt design. Talk to others in your field and see how they are handling this in today’s climate.

Maurice: Back child support kids are 21 19 what can i do

Joe Escalante: You work with the court that issued the support order. The D.A.’s office handles deadbeat dad cases in many counties. It’s a process. You are basically trying to get wages garnished and deadbeats don’t usually earn much.






Joe Escalante: It all depends on the language in the loan agreement. If you did not put it in writing, I can’t tell you what is going to happen. It sounds like he will try to take you to small claims court and then a judge will decide. I wouldn’t worry about his lawyer talk. A lawyer can’t do anything to you. He can’t even appear against you in small claims court.

Wesley: I have a client that wants to know if having real property in a trust is something that he has to disclose as an asset (to his ex-wife) if he is the sole beneficiary of the trust.

Joe Escalante: My understanding is that in most states, an inheritance is separate property. I don’t know if he has to disclose it but if it is an inheritance, it wont be a marital asset regardless.

LegalZoom: More free legal advice next week! Joe will be back on Tuesday to answer more of your legal questions.

If you’ve already posted your question for Joe, hang tight. Haven’t posted yet? Join us Tuesday!

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October 2nd, 2012 at 5:55 am