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What Constitutes a Common Law Marriage? And More Legal Q&A – Free Joe 11/6/12

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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.

Rebecca: If two people have been living together for a while and one says they are common law married and one says they aren’t, can one person have “a free lawyer” say they ARE common law married and take 1/2 of everything if they cease to live together?

Joe Escalante: Both parties would have to agree that it was a marriage under my reading of the statute:
Under § 2.401 of the Texas Family Code, an informal marriage can be established either by declaration (registering at the county courthouse without having a ceremony), or by meeting a three-prong test showing evidence of (1) an agreement to be married; (2) cohabitation in Texas; and (3) representation to others that the parties are married. A 1995 update adds an evidentiary presumption that there was no marriage if no suit for proof of marriage is filed within two years of the date the parties separated and ceased living together.

Ken: Can you form an LLC even if you dont have a business?

Joe Escalante: Some people want to do that for tax shenanigans because they think they can just declare themselves a corporation or limited liability company and limit their liability in life and pay less taxes. It doesn’t really work out though unless you are really doing some kind of business. In my state there is an $800 minimum tax you pay as an LLC, so if you do no business, you are still paying the IRS $800 each year. People would still be able to sue you raggedy if you did them harm because if you are phony corp, they would be allowed to “pierce the corporate veil” and go after your personal assets. So the answer is you can do it, but it’s for dum dums.

Patricia: This is a Workman’s comp question. I have been a CNA for over 20 years. I am starting to have problems with my right shoulder which I use a lot in lifting people. Can that be claimed on workman’s comp? Do I need to go to a doctor first before thinking of filing for workman’s comp?

Joe Escalante: If it was an accident, like an anvil falling on your head, you would notify your supervisor and start filing out papers immediately. However, in this case, it’s probably best to see the doctor, if the doctor believes it is work related, he might have forms for workers comp claims, or you just take your diagnosis to your management people in your nurse world and tell them you need to file a claim so that workers comp insurance can start paying the medical bills you get for treatment. If they refuse to help you, they are naughty nurses.
The clock starts ticking as soon as you realize you have an injury caused by work, at some point, the insurance company will deny the claim saying you waited too long, so don’t delay. Here’s some more info:

Christine: Hi Joe. My husband is squatting in my house. We are married so in CA it is community property but the deed and loan are exclusively in my name. He is also subletting a room to someone and her child to make income. He is preventing me from selling the house so soon it will belong to the bank. Question – is there anything I can do to get his tennants out of my house?

Joe Escalante: If the deed is in your name, it wont be that hard to file an unlawful detainer claim against the unlawful tenants. This is a pretty quick process you do in Superior Court of L.A. County. First you have to give them notice in a form that does not violate their rights as tenants. If they don’t leave, they probably show up in court and contest the filing. It’s kind of tricky but most people do it without an attorney and I’ve adjudicated hundreds of them where no counsel was present. Once you win, the marshals will kick them out if they continue to stay. Although there are attorneys that specialize in this and it’s not that expensive. This site has some pretty good info on the process in L.A. Good Luck.

Barb: Here is my question can I copyright my likeness as in my image and name

Joe Escalante: A copyright can only be acquired through a creative expression of an idea. Your face is not a creative expression of an idea; same goes for your name. You may associate them with a product or service and obtain trademark protection if you use them in interstate commerce, but it has to be legit. For more on this kind of stuff, call my radio show. Info is on my Facebook page.

Eric: Joe, how long do I have to report workplace abuse?

Joe Escalante: That would depend on the facts, but as in workers comp claims, the clock starts ticking as soon as you discover the harm. If you wait to long, you might be judged to have waived your rights or assented to the abuse. At the very least it would be harder to show damages because you waited for a certain period. What that period would be would depend on the facts. Make sure you report is in writing.

Alayna: Why is it illegal to post a picture of your ballot to online sites?

Joe Escalante: When I ran for judge, I was flooded with photos of people’s ballots who voted for me There were no arrests made. Well flooded is not really the word, since I lost, but there were at least a dozen. In California anyway, people are getting away with murder evidently.

Said: What can one do to legally discharge a former partner that won’t follow up with the separation paperwork?

Joe Escalante: Every state is different, but in general dissolving a general partnership mainly involves communicating the fact that there is no longer a partnership. You tell the fed and state tax authorities, you tell your customers, your suppliers, bank, etc. You are telling the world that you are out, and you will not be liable for any further debts or obligations.
You can’t make someone fill out separation paperwork if your state requires it but you can send certified letters that tell your bad partner that from this point forward, he is on the hook for obligations of the business and you are not.

Ryan: My question is if my now deceased mother in-law left my wife a trust fund to provide for her and our daughter and my wife who has since left me is still using the trust fund can I sue her and make the trust fund go entirely to our daughter?

Joe Escalante: According to your facts, the trust was made to provide for your ex as well as your daughter. You’re never going to win this.

Ryan: There is a stipulation in my mother in-laws will that says if my ex is not using the money wisely then by default it goes to our daughter. I would consider using the money on booze and drugs as a bad decision

Joe Escalante: If it’s that extreme, and you can prove it, then the daughter can file a suit for breach of a trust.

Beverly: I live in a HOA, 5 years ago they took my private property and made it the new emergncy spillway for when it floods for a lake they own, I did not give them permission but they took it anyway and made it the new spillway, my place flood,and
I called TCEQ in Texas they did a report stated that if the homeowners does not wnat it on their property then the HOA needs to move it, well according to new law madates TCEQ can’t enforce anything until 2015.. What can I do I can’t afford to pay alot of money but I can’t make repairs until they fix their lake

Joe Escalante: This is going to require an attorney. You could rent out that cute kitty for photo shoots to help defray the costs, perhaps. But seriously, you should at least get a one hour consultation with a property/riparian rights type of attorney.

Becki: If the eeoc rules in your favor for sexual discrimination because of your position being changed without need for being pregnant and the employer isn’t working with the conciliation process and you decide to sue should/can you ask for the full amount of monetary damages of 50k and what is the likelihood cereal court would award it to you?

Joe Escalante: I’m not familiar with cereal court but this is one of those things where the facts will dictate the answer to a large extent. You need to tell this story to a plaintiff’s lawyer with workplace discrimination experience.

Faye: What can be done if you are suppose to file a joint tax return for the last year you are married and the husband files one? It is written in our divorce to file joint.

Joe Escalante: If this caused you any harm, you petition the court to get recompense. He violated a court order. He could be held in contempt.

Jess: Can I use the letters inc in my doing business as name, or my for example: Turriinc or my business name period without being an incorporated business??

Joe Escalante: You might get away with it, but if you try to register it as a trademark, they might refuse it as confusing.

Nathan: This is sort of complex but ill try to keep it simple. If a tenant on rental assistance goes to court and make a payment arrangement agreement. But the Landlord files for eviction before end of the agreement siting non payment of rent eventhough the tenant is paying the agreed amounts on time should a stay of eviction and the eviction being vacated allow the tenant to keep his assistance… And if they lose it how do you go about fighting for it

Joe Escalante: The tenant cannot be evicted without being offered a court date. That is where the tenant should bring the evidence that rent has been paid within the terms of the rental agreement. The judge will decide if the tenant can stay and for how long.

Tabitha: What’s the best option-foreclosure, short sale, or deed in lieu?

Joe Escalante: If lender will agree, I think deed in lieu is better than foreclosure, for credit rating at least. Short sale is good if it doesn’t hurt your credit as much as a deed in lieu, if harm to credit is the same, which I don’t know, deed in lieu seems cleaner and quicker.

LegalZoom: That’s a wrap for Free Joe! More free legal advice coming up on Friday (details:

If you’ve already posted your question, hang tight and Joe will get to it. Otherwise, come join us on Friday to post!


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November 8th, 2012 at 5:31 am