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How Can I Protect Myself From My Ex’s Debt? And More Free Legal Advice – Free Joe 4/10/12

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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.

Keri: Hi I got an interesting question My soon to be ex husband moved away and is refusing to share his new address I am not 100% sure that he moved he was living with his mother and she isn’t telling if he is there or not, Can I still File for divorce even if I don’t know where he is?

Joe Escalante: Yes. This would be a contested divorce. You try to serve him, publish the court date pursuant to local rules, and if he doesn’t show up, he gets a default judgment against him.

Ruth: My wife left me and is not coming back. What should I do to protect mydelf from her debts?

Joe Escalante: You should file for divorce. Even if you can’t find her, you can divorce her. It would be a contested divorce and after you follow the court’s procedure for service and/or publishing notice, you can get a court proceeding and a default judgment if she doesn’t show up.

Berneice: A member of our family had a lawsuit against the nursing home where our mother died due to coumadin poisoning. Is it possible for other family children to file another? These children do not asociate with each other.

Joe Escalante: To prevail in a lawsuit you would need standing and damages, among other things. The estate may have standing for a wrongful death claim, but what is the standing of family members? What are their damages? There are probably no court recognized damages available to random family members.

Paul: My x wife dont pay child support because she dont have a job.and domestic lets her get away with it.They even went as far as terminating the case.Is there anything i can do about it? I live in Pa.

Joe Escalante: Child support is determined by ability and obligation to pay. You need to petition the court to modify the support order. That’s where you make your case that she is deliberately not working to avoid payment, if that is the case. This is what family law attorneys do. It’s not easy.

Tamika: If someone lied about arrearage being owed when they were being paid directly for child support and income taxes were withheld and checks garnished. When it is proven in court that there were no arrears owed because of check stubbs and deposit slips provided, can the money be recouped? How?

Joe Escalante: You can file a lawsuit against the government for a violation of due process. You need to find out what the procedure is under the “State Tort Claims Act.” States require notice that you are going to sue them. Then they decide if you can sue them. It’s weird, but not that hard. Confiscating your money without due process is a violation of your civil rights.

Terry: if you get married, and change your last name or blend your last names in one state, and your own state won’t recognize it, what then? (same sex-marriage)

Joe Escalante: You can legally change your name in any state as long as the court doesn’t feel you are doing it to avoid debts or pull some kind of scam. Regarding recognizing your marriage, I don’t have an answer. This is all in flux right now and there are lawsuits flying around everywhere.

Rachel: If your on the way to work n your in a car accident n your hurt n you call to your job n you have to take days off doctors oders ,,n they say u need to come in or u don’t have a job, can that happen….

Joe Escalante: It depends on the terms of your employment. If you have a contract, they must follow the terms of the contract. If you are employed “at will” without a contract. They can fire you any time, as long as they are not violating your civil rights. You should call the State Labor Commission office and file a complaint if you are fired for something you feel is unfair. They have a process to help you.

Rachel: No contract just regular job

Joe Escalante: Talk to the State Labor Commissioner, or State Labor Board to inquire about a complaint.

Kristina: How can you change the last name of a minor if you don’t know where the absentee parent is to get consent? Is there a form to complete to bypass them?

Joe Escalante: The court has a process to provide notice to anyone who would object by publication. Talk to the clerk and ask what the process is to provide notice to an absentee parent. You go through that process, you publicize the court proceeding in the local paper, and that should be enough. Good luck.

Joyce: My husband and I are both unable to work due to medical reasons. My SSI application was approved on the first try, but my husbands was denied. We are appealing it but in the meantime, he has no income and we are struggling to make ends meet. My income is too much to qualify for welfare assistance health care or food stamps. We are considering divorce, because then he should qualify for food stamps and health insurance. I will become eligible for medicare next month. Right now we are paying $435.00/month for health insurance that is rejecting every claim. He was hospitalized twice and I was in the hospiral once. We also have to pay rent, car insurance, full price for prescriptions (not included in our health insurance), co-pays for doctor visits, full price for dental (no insurance), telephone bills, etc. We barely eat as we can’t afford to buy much food. We do go to food banks and we have qualified for several medications thru patient assistance programs. My question is if we separate, should he be eligible for public assistance (we live in PA), or do we have to go through with the divorce?

Joe Escalante: I don’t know how long you could get away with eligibility based on a separation as opposed to divorce. The agency that made up this rule would have to answer it. If you get an answer, make sure it is in writing. Sorry about your troubles.

Teresita: BK 13,with in 5yrs,are all the money coming to me needs to be given to the trustee.

Joe Escalante: You and your trustee agree on a plan. You pay to the trustee the amount agreed upon in your plan. The trustee pays the creditors. You only need to pay the trustee the monthly amount in the plan.

David: should you require your tenant when renting property to carry renters insurance, i live in MI btw. thanks in advance have a blessed day.

Joe Escalante: I was required to get renter’s insurance last time I rented a house. You should put it into the rental agreement. Good idea if you can get away with it.

Markitta: If my company is already an LLC is it necessary to purchase a trademark to protect our name?

Joe Escalante: Not necessary but it does provide valuable protection if someone decides to use your mark. It allows you to sue in federal court and provides a presumption that your mark is valid, and the infringer is violating it.

Brian: There is another company who shares my name operating out of portugal (shock games). We do game development and they are a gaming reseller similar to gamestop but online. Might I run into issues?

Joe Escalante: My filing for Federal Trademark protection, you have the ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods.

They may be able to stop you from importing your goods to Portugal under a trademark treaty. Game developer and game reseller might create some market confusion down the road, but it’s not a slam dunk. So, what to do would depend on how invested you are in your name, and if you were using it first.

Brian: I’ve filed a trademark for my logo with the USPTO ( to see it), own Shock Games, LLC in Michigan, and filed a DBA which is currently under way. I believe they were using it first, I didn’t find them earlier since they used for their website. I do like the name and have built a bit of a fan base around it (nothing too large, a few hundred).

Joe Escalante: This is a toss up. They may come after you, they may not. There’s not a lot you can do to stop them from using it. The longer they wait to come after you, the less likely they would be to prevail because you are building a history of “non-confusion” in the market place. That’s good evidence.

Patty: Of you are married in Missouri but husband and mother name is on deed to home but only husband on mortgage. What happens if no will or trust. Also who is responsible for debt. We have separate accounts for everything

Joe Escalante: Whoever signed the note is responsible for the debt. During probate the bank will come in and may force the sale of the property to get their money back, then what is left would be divided between heirs per intestacy laws. That’s my best guess. This is a strange scenario.

Scott: Hi joe, i registered my business name as a trademark. does that only protect it when it’s used entirely or does it also guard against a buisness name that very closely resembles it or even uses a part of it?

Joe Escalante: It protects you from people that may use part of it. If the public would be confused by the use, it is arguably infringing. For example, If I make “Mickey M.” watches with a mouse that looks limilar to Mickey Mouse, but isn’t exactly Mickey Mouse, Disney is going to come after me with a vengance and they are probably going to win because I am taking advantage of their protected mark in a way that may mislead the public.

This is the kind of stuff we talk about on my radio show. Check it out some time. Http://

Tarik: Can a property manager charge money after you move out for cleaning of normal ware if they did not charge a deposit upon move in?

Joe Escalante: That depends on the terms of the lease or rental agreement. If you agreed to it, he can. If there’s no agreement he has nothing to base his demand on.

Daniel: Hi Joe,

What do you recommend as a valid and general working contract between USA (me) and India (them)?

Joe Escalante: Contract for what?

Daniel: For programming and design work. I am just curious of their business structure and taxes or whatever the case may be. Care to share some insight? :)

Joe Escalante: Tax issues should be addressed by your tax pro, but there are a lot of books on dealing with India. I’d start with this one. Thanks.

Cathy: I am a widow, I would like to create a will that would eliminate my property and valuable memorabilia from going in to probate. I want my youngest adult son (who lives with me) to inherit what I have. I have 4 older adult children that I want entirely excluded. Would adding my youngest son to the deed of my property eliminate the property issue? I would like to know what type of will I would need to initiate in order to accomplish my wishes. I want a will that would not allow any of my older 4 offspring the ability to contest my will. Thank you Joe. I live in Arizona.

Joe Escalante: Most people avoid probate by transferring property to a living trust. The living trust doesn’t die when you die. The beneficiary (your youngest son) just takes over the ownership of the stuff owned by the living trust.

Putting the home in the trust would avoid having to put your youngest son on the deed to the home. However, the home would avoid probate if you and the boy owned it as “joint tenants with right of survivorship.” Either method will work, but I recommend a living trust. Here’s a link to get some more info from Legalzoom about how this works:

LegalZoom: Here you go, Cathy:

Beverly: My sister has a revocable living trust and POA for my mom who has Alzheimers. She can no longer care for my mom who has been living with her the past eight years. I will become her caregiver but my sister is unwilling to give me POA over Medical or her finances. What can I do?

Joe Escalante: You can petition the court for guardianship. This should trump the POA your sister has. She’ll have to come to court to contest the guardianship. That’s what you want.

Virginia: Hi Joe! I have a question. I dont want 2 mention names but I know someone whose mother used his ss# to get utilities w/o his knowledge & while he was out of state, then proceeded to not pay them. Now he doesnt want to get his mother in trouble so I want to know is there anything else he can do to prevent her from doing this again?

Joe Escalante: He just has to keep an eye on her. She’s crafty.

Gary: I had LegalZoom create a California LLC for me last year at this time. Everything was fine. Don’t I owe $800 to CA every year for the LLC– so far, I have not gotten anything from the State.

Joe Escalante: This is a tax question best answered by a tax pro. As far as I know, the state doesn’t chase you down, you have to file a return for the LLC. Check with a tax pro asap to avoid fines and penalties.

LegalZoom: Hi Gary, it’s best to contact the Franchise Tax Board to find out when your $800 tax is due for your LLC:

Mike: Hi Joe. I started a recreational adult sports league under an LLC but after doing some research, I see that others have opened similar leagues as a non-profit – I assume under 501c7. I’ve built up a brand around it’s current name. Is it possible for me to change the my biz status from an LLC to a non-profit or do I need to create a total new entity? Net, what’s the easiest way to transition?

Joe Escalante: You need to create a whole new entity.

Tawyna: how do i go about getting a certificate of relief?

Joe Escalante: A certificat of relief from what?

Tawyna: Trying to get a relief for my realestate exam had a felony 10 years ago no trouble after that

Joe Escalante: I’m not familiar with a certificate of relief associated with a real estate exam. You should talk to a criminal defense attorney in your area and ask about getting the felony expunged.

LegalZoom: That’s it for Free Joe Tuesday! If you’ve already posted your question, hang tight and Joe will get to it. If you haven’t posted a question yet, save it for Free Joe Friday, when Joe will be back to answer more legal questions. Have a great day!

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April 12th, 2012 at 6:14 am