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Preventing Autopsies for Religious Reasons, Anti-Trust Act Violations, and More Free Legal Advice – Free Joe Friday 8/12/11

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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.

LegalZoom: Good morning and welcome to Free Joe Friday! Attorney Joe Escalante is live on our Facebook wall answering your legal questions—for free! Got a question? Post it to our wall (not in the comments of this post) now. Get the details here: http://zoo.mn/FreeJoe

Bobby: I am the President of a 501c3 non-profit org with no employees. Can I become an employee? Do I deduct fed, state taxes, etc from my income? Do I file at the end of the year?

Joe Escalante: You can be an employee and you can draw a salary if there are no shenanigans. Talk to your tax pro about the details, but as long as it’s all fair and necessary for the “cause” it can be done.

Thomas: Hey Joe, I was arrested for DUI over a year ago & since then I have contracted a deteriorating medical condition – I tried to get the ADA to work out a suspended sentence deal, but to no avail – can I pursue an Affirmative Defense based on eighth amendment violations (chronic pain & a degenerative medical condition) and deliberative indifference to my condition?

Joe Escalante: Cruel and unusual punishment? That wont stop the conviction, but your medical condition could affect sentencing. You need a good D.U.I. lawyer, the kind with a picture of his yacht in his Yellow Pages ad.

Richard: i live in upstate new york and pay child support for two boys.One is 21(he lives with his mother) and the other 19( who just went into the Navy).When am i able to stop paying support?

Joe Escalante: Does your support order demand that you pay support for your kids after they are 18? There’s no law that makes you do that, unless they are disabled. If you agreed to it in divorce decree, you could always petition to have it modified since it’s lame.

Joyce: My husband passed away may 11th of this yr, he was in and out of the hospital and nursing hom e and home from oct to feb. We were both on ssi. I am recieving a bill from the nurseing home for over 7000 dollars . they say i am responseable for this bill. they were to let me know when medicare stopped payment and then i would bring him home , and start over if needed. i am paying 50 dollars a month its all i can afford. there was no estate just our mobie home in both names and a 2003 car. just need to know if i am responseable to keep paying on this bill. Thank you Joyce Gaa.

Joe Escalante: Under the “doctrine of necessaries.” spouses are usually liable for the medical costs of their deceased spouse. Check with a S. Carolina lawyer to see if his doctrine is recognized in your state.

Scott: Hey Joe. Is it illegal for a corporation to have volunteer staff? If not, can volunteer staff have titles, such as Staff Operations Assistant? I realize there are rules governing interns, but I am talking more about having volunteer staff. Thanks!

Joe Escalante: It’s risky, due to the 13th amendment prohibiting slavery. Talk with your state labor commission to get some guidance. Giving them titles like vice president probably not a good idea, as it denotes authority and expectation of a paycheck. Calling them things like “Imperial Wizard” and “Witch Doctor” might be better.

Ann: how long do you hav to wait to file bankruptcy if you have already done so before?

Joe Escalante: 8 years between Chapter 7 filings. Congratulations.

Ann: so, how long if I do a Chapter 13?

Joe Escalante: It might be 6 then. Double congratulations!

Yolanda: I am contemplating filing bankruptcy. Although all my bills are current, it is becoming a bit overwhelming. I have amassed approx. $10,000 in debt. Which is better for me…Bankruptcy or Debt Consolidation?

Joe Escalante: Both could turn out badly. I would investigate debt consolidation, but there are a lot of charlatans out there in that industry. Best advice is to listen to and read everything Dave Ramsey has to say on the subject. Drink his Kool-Aid and you will be debt free soon, in a safe and responsible way. http://www.daveramsey.com/​home/

Marsha: Eight years ago, I used $12,000 of my inheritance to “buy” a timeshare on Singer Island, West Palm Beach, FL. I thought it was smart to invest in at the time. However, since then, I have gotten divorced, and was unemployed for 2 years. I am behind $1,200 in maintenance fees and dues, and can’t afford to even go there. Is there any way that I can avoid foreclosure, because I can’t even afford to pay an agent to try and sell it. Marsha

Joe Escalante: They got you. You have to pay to get rid of those things.

Lisa: In Arizona,My boss had me sign a non compete when I got hired 2 years ago. If I quit, I can’t get a job for 100 miles around. Is that legel?

Joe Escalante: It may not be. Show it to an employment attorney in your area. Stuff like that is only enforceable to the extent that it is fair. If you were not given a choice to negotiate the language, it’s even less likely to be enforceable. You have a right to make a living. Check out the link below to find someone good.

LegalZoom: Here you go, Lisa: http://attorneyconnect.leg​alzoom.com/

SDEC: Is it possible to appeal a Small Claim Court decision, especially if additional evidence was provided, that wasn’t presented in the initial Small Claims Court hearing?

Joe Escalante: If you are the defendant, yes. The plaintiff cannot appeal a small claims case in California, unless they’re appealing a counter claim made by the defendant.

John: Joe, just formed an S-Corp through LegalZoom for real estate and will be the President and Designated Broker with the Dept. of Real Estate, can I still be paid and treated as an “independent contractor” for my home sales (i.e. paid directly from escrow, pay my own taxes, and most importantly, claim my expenses on my personal tax return)? In real estate, we are independent contractors and keep track of our income taxes and expenses, just hoping I can continue that way even though we’ve started a new company where I am the President and Designated Broker. Does an S-Corp have to have any employees?

Joe Escalante: These are mostly tax questions for your tax pro, not legal issues. An S-corp has to have at least one shareholder.

John: Thanks, I’ll check with a tax pro as suggested. We have more than 1 shareholder, I need to find out if we need to have employees. Does the president have to be an employee, or can he/I be an independent contractor? Thanks!

Joe Escalante: it just has to have a shareholder. It doesn’t have employees, but if you are talking about labor practices, check with the labor commission to see if what you are up to is kosher.

SDEC: From the San Diego Entrepreneur Center…two parties create a company/business, 50/50 and as the business progresses, one of the partners seems to do more work than the other…. Since the partnership is 50/50 do they have to split the profits from monthly sales revenues 50/50? And if they agree to sell the company, are the proceeds 50/50? Thanks, Joe!

Joe Escalante: You can change the operating agreement to reflect the reality of the work load and whoever has the authority under the operating agreement can set salaries at different levels, however, be careful. If the IRS sees that one person owns 50% and gets less than that, they will wonder if there are shenanigans afoot. You might have to get that approved. I think there’s a form. Otherwise the IRS thinks money is flowing to the person in the lowest tax bracket, and then being back channeled.
You would have to do a formal transfer of shares / interest at some point to change the amount of proceeds upon sale from the original 50/50.

Lisa: my question is i was a orphan in a orphanage in patras greece never knew birth parent’s i got a ammened birth certificate i need to get my orginial one can be possible an dhow can I do it without knowing my birth name? there has to be a recorded doc to show who I am right never seen my parent’s been looking for a long time.please if you can help i just need to get this to find my family, thank you

Joe Escalante: You can try Greek genealogy web sites like http://www.hellenism.net/ and http://genforum.genealogy.​com/greece/?cj… but they usually require at least a name. Next would be the hospital records. If necessary, you can go to court to get the equivalent of a birth certificate if that’s what you need. Contact a family law attorney in your area for help.

Tony: Hello Joe, I have started a business called Elite Athletics – Kansas City, LLC.It involves training amateur athletics in certain sports. I was wondering, Legally, could I make it a trade name, and then have subdivisions that are not profit Such as Elite Athletics- Kansas City Basketball, Elite Athletics – Kansas City Soccer, etc…? Please let me know if I am not clear enought. Thanks!

Joe Escalante: I’m not that clear on what you are asking but in general, if you want to learn about what you can do to be exempt from taxes with your entity, consult a tax pro experienced with 501 (c) 3 corps

Tony: Basically im asking whether legally though my business is a llc, could I make a trade name and start some non profits under the name legally?

Joe Escalante: To create a valid non profit entity, you have to start from scratch, or if your state allows, convert and existing entity. I don’t see a scenario where one entity owns non profits. I say no.

Jordan: I purchased a used 2011 ford edge with about 5 k miles. I have owned the car about 4 months I have only got to drive it about two weeks with out problems, the rest of the time the car has been in the shop. 3 ford dealers have tried to fix it, one kept the car for about a month and a half straight. Obviously a lemon, but my question is what are the advantages of using a lemon law attorney when it seems I can file by myself and my car meets all the requirements as a lemon? The rules seem pretty straight forward on what I can expect to get (this car was purchased in Texas)

Joe Escalante: would do it myself if I were you. Especially if the process seems clear to you at this point.

Laurie: I’m wanting to repair credit I have all three reports now just need to know how to start

Joe Escalante: It’s unclear whether that is possible. People make claims, but there are weasels in this business. Dave Ramsey is a good source for credit issues. Study his stuff. But he says that the answer is to stop using credit. But he’s worth a try. http://www.daveramsey.com/​home/

Everett: Hey Joe, if an online service forwards a message for an individual and states so in the text, is it violating any of the big 3 telecommunications laws from the past 2 decades?

Joe Escalante: No.

Stuart: Can I change my ‘S corp. to a non-profit using the same EIN?

Joe Escalante: Depends on the state. If your state makes you dissolve first, then you will get a new EIN. If they allow you to convert, you might be able to use the same one. Check with your secretary of state.

Jeffrey: What are the standards for collusion. unfair competition under anti-trust? THX

Joe Escalante: How much time do you have? Oh wait, how much time do I have? Generally, if two or more entities get together to fix prices in an industry, or make arrangements to create entry barriers to the marketplace, or otherwise inhibit free and fair competition, you have potential Sherman Anti-trust Act violations.

Jose: Hi joe. My boss promoted me and told me i would get my raise in a week. Weeks went by and i never got my raise. She blamed it on her supervisor not approving it. I called her supervisor and she told me my boss never put in a request and lied to me the whole time. Should i sue?

I worked promoted for about 2 months before i called her supervisor.

Joe Escalante: Generally a promise like this is not enforceable unless you can prove that you relied on it to your detriment. If they promised you a raise to prevent you from taking another job that paid more, that might be provable. But just patting you on the head, and saying good job, we’re going to give you a biscuit, and then not giving you a biscuit, is not something you should go to court over. Even if it was in writing, it would not be enforceable unless you could prove you relied on it to your detriment.

Sinequa: Hi joe, I am having a hard time finding an attorney due to the fact the situation is against a big company. They always state that I have a case but they will past on it. What should I do? Time is running out. I have been trying for the past year

Joe Escalante: OK, I give up. What is the case?

Tom: Hi Joe I am wondering can someone sue a online service which just uses emails for csm the never reply and refuse to help. It’s WordPress

Joe Escalante: You have to ask yourself. What are my damages? Are they provable and certain?

Suzzette: Hi Joe! I am starting a small errand service and in home, non- medical assistance. I am working on getting my business license from Pinellas County as well as my “homemaker companion” license from the state. It will be only me operating and working for the business. To simplfy my taxes I was going to open it as a Sole Proprietorship, but have been given advice to do it as an LLC for liability. I really have no assets in my name except for my car which is half in my mom’s name. Do you think i could still open as sole proprietorship and have any clients sign general release waivers for transportation to and from shopping and errands?

Joe Escalante: I think you are fine to start up as a sole proprietor first, with insurance. And check with the department of transportation in your area to see if it’s legal to transport people around like you’re planning.

Josh: If I sue someone and win (in small claims court in South Carolina), and then they declaire bankruptcy, does that mean they don’t have to pay?

Not that I believe they were going to pay anyway. But they claim they now declaired bankruptcy. Though, I haven’t received official notice.

Joe Escalante: The bankruptcy trustee would decide who would get paid first. You contact them to see where you stand in line with other creditors. Proceed as if it is b.s. until you find out different. Get a writ of execution and file a lien on their property or garnish wages immediately. I.e., get first in line.

Jeff: If a divorce were filed in Ca, what is the time limit to complete it?

Joe Escalante: It will stay there until you close it. Why rush things?

Robert: i have a religous concern about autopies when i die is there anyway i can stop this type of thing from happening to me when i die or is there anything on the book’s that i can write on my living that will prevent this from happening to me.

Joe Escalante: Some states have made laws that recognize religious objections to autopsies but you are really at the mercy of the government and family members willing to fight for you. If there is a legal necessity to have an autopsy, like a suspicious death, the govt. interests may trump the religious ones.

MaryAnn: Hi Joe, if I make a will on legal zoom do I have to provide private information? Like my social security number ? Thank you

Joe Escalante: No, but legalzoom provides confidential services. Don’t worry about stuff like that.

Dena: I moved out of state to go back to college to have a better future for my son who is staying with his dad full time. His dad stopped paying child support since I’m not caring for him during this time. Am I entitled to receive payments or should I “let it go” to avoid a legal mess. It’s only $250/month :/

Joe Escalante: To enforce it, you’d have to petition to amend the support order. The whole thing would change since the kid is not with you.

Rod: I am a sales representative and my taxes are in the 1099 format. What are some good resources to learn more about legal deductions and turning my business into an llc. Also, would you recommend the llc route if I’m making good money?

Joe Escalante: Yes I would. However, final determination should be made with advice from a tax pro. so much of it is tax related.

Becki: There is a local shop that sells things that are home made by stay at home moms. If she sells things I make do I need to have a business license ect? Thanks joe

Joe Escalante: Depends on where you live, and how much they enforce stuff like this. Ask around and see if anyone’s been fined for doing what you do without a license. Call the city anonymously and ask a few questions there as well. Often they’ll give you wrong terrible info so don’t take it as the last word.

Juliette: I want to re-write or re-publish a book from the 1930′s…how can I check if it’s legal to use the content (I can’t locate author or publisher). Thank you!

Joe Escalante: http://www.nolo.com/produc​ts/the-public-domain-PUBL.​html

Read that book. It’s excellent. It will tell you everything you need to know. It has cool checklists.

Victoria: When a tenant moves out an apartment and the owners change in the process. Who is responsible for Security Deposit Return to tenant? VELY

Joe Escalante: Both of them. If one burns you, you can go after the other. They can cross-claim the crap out of each other, what do you care? Good luck.

Monica: Good Afternoon, if someone dies before making a will but verbally told someone who he wanted as executor of his estate what needs to be done?

Joe Escalante: Not a lot can be done with that. If someone dies intestate, the court will appoint administrators of the estate.

Tracey: Husband and wife file Federal taxes. Wife never files State tax returns for 3 years. Now they are no longer together. Husband had no idea that they were never filed. Husband was not the major bread winner, the wife was. Husband filed his share of taxes and does not owe. Wife is nowhere to be found. Technically they do not owe at all except for penalties for non-filing. Since the State cannot get her to file they are making him pay over $23000. Can he file an amendment without her signature to prove they do not owe any back taxes? The State did get their money for those 3 years at the time.

Joe Escalante: This is tax stuff. You need to ask a tax pro. Sorry.

Ginger: What if you job is being threatened by illegal aliens at work…they got in by false documents and now they are trying to squeeze you out of a job…want should you do

Joe Escalante: You could talk to the labor commission in your area, but in the words of Jose’ Jimenez, “Is no my yob.”

LegalZoom: Wow! TONS of great legal questions for Free Joe Friday! Thanks for joining us, everyone. Joe will get to as many of your questions as he can. If you haven’t posted your question yet (or if you did and we don’t have time to get to it), please come back for Free Joe Tuesday, which is exactly what it sounds like: free legal advice on Tuesday instead of Friday. Check out the Free Joe tab for details and in the meantime, visit Joe on Facebook at Barely Legal Radio w/ Joe Escalante.

If you’ve got a legal question, join us on Facebook to post your question for Joe. Get all the details on the Free Joe tab.

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August 16th, 2011 at 6:17 am