LegalZoom Blog

Legal news and small business tips.

What’s the Difference Between Separation and Divorce? And More Free Legal Advice – Free Joe Friday 9/9/11

no comments yet

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.

Candy: whats the diffrence between a sepration and a divorce

Joe Escalante: A divorce ends the marriage permanently. A legal separation does not. You have a court order that outlines the rights and responsibilities of each spouse while they are living apart, but you are still legally married. You cannot marry another during this time for example. That would be bigamy, or an HBO series.

Patty: My question is we have filed bankruptcy 3 times in 12 yrs. Not our choice it was all do to economics. Now we have been paying as many bills off as possible. My husband had 2 very serious surgerys and I am the only one working. My question is this???? My husband would like to file bankruptcy on the hospital bills because they are more than my paycheck can afford. Since we have a 900. rent (on a dump) and 350. a month on power. Can we file?

Joe Escalante: Patty, Patty, Patty. There aren’t limits to how many times you can file if you wait the required period in between filings which can be anywhere from 4 to 8 years depending on the time of bankruptcy you filed (7,11, or 13).

Adam: Does the US patriot act allow federal investigators to eavesdrop on confidential conversations between attorney and client in federal correctional institutions?

Joe Escalante: There was a law passed after Sept. 11 that allowed this if there was a good faith belief that the conversation was in furtherance of a crime. Like if I visit my client in Lompoc and he tells me to tell another guy where the shoe bombs are hidden. The defense lawyer would probably be able to prevent this evidence from being presented at trial, but it would still be legal for the feds to gather it.

Tiffiny: What should I file to be heard in probate court? My grandfather has been deceased for two yrs. His daughters haven’t done a thing but take from the estate. They haven’t paid taxes or anything. What can I do?

Joe Escalante: You need to challenge the executor of the will and stop the shenanigans. Legalzoom has a great article on this. This is why we love Legalzoom!

Tamara: Question…with the San Diego power outages, is SDG&E liable for spoiled food in our fridge and freezers?

Joe Escalante: This would be a problem for the plaintiff. Outages are expected. What did you do to mitigate the damages? You are required to mitigate. If you get zapped because of negligence, that’s one thing. But spoiled food? Come on.

Great question though.

Marilyn: Legal question: I recently launched my business with what I thought was a unique name. After obtaining my EIN and filing DBA papers, a Google search showed results of a company with a very similar name and very similar logo, whose results didn’t show up in previous searches. The company is UK based, while I am US based. Are there any business conflicts that could arise from these similarities?

Joe Escalante: You will be fine unless they are using the mark in the U.S. and you are really screwed if they hold a U.S. Trademark. You have a couple options. Try to perform a good trademark search on your own. Use Legalzoom’s Trademark Search Service,

or hire an attorney. which is overkill.

Mary Anne: how do u go about a proposal to a co. for idea ?? without them stealing it after they refuse?????

Joe Escalante: You make them sign an non-disclosure agreement. If they steal it after that, they’ve violated a written promise not to so it will be easier to beat them in court that way. Do yourself a favor and buy legalzoom’s NDA.

Teralyn: Joe, what documents are “required” to dissolve an LLC? What would be the normal things a CPA would ask me for? I am being asked for a million pages of the LLC’s detailed General Ledger which isnt even up to date, so I’d have to sit and get it ready and it would take me a month. I’ve already resigned from the LLC and started a new job, so if there is a simpler way and she’s just making this more difficult to collect more money, I’d like to say I know better and tell her she doesn’t need all that. Couldn’t I tell her to ask the majority member for all of that since I am already gone? I do know he is not capable of putting together the info, he doesnt have a clue what a General Ledger even is. I believe the CPA is going to ask for everything just so she has more billable hours, but I could be wrong and she could really need ALL That.

Joe Escalante: I agree. Sounds like classic “churning the client.” Fire the CPA and look at this:

after you’ve looked at this. Get a second opinion from a tax professional about how this will affect you.

Cathey: My parents are 84 and 82. They have a living trust and living will. I have durable power of attorney for medical and trust related issues if needed. Do they need to put their debt-free house in my name to avoid inheritance tax when they pass away? We live in Ohio.

Joe Escalante: I don’t know anything about Ohio taxes, but putting it in a trust will avoid probate so it will pass to the beneficiary immediately without the time and expense of probate.

Carolyn: should you have a business checking for sales and purchases and a seperate one for building costs , utilities , ins…etc…????

Joe Escalante: This is a question for your tax pro, there’s no legal issues that I can see here. Sorry.

Lakishia: I inherited my mothers home after her passing. She has a mortgage am I obligated to pay this mortgage?

Joe Escalante: No, you can sell the property and not have the mortgage. There’s no way to keep the house and have someone else pay the mortgage because the original borrower died. If that was the rule, no one would lend money to anyone except for babies with great credit.

Nicole: I have a son who will be 17 this month when he was 11 months old his father was killed in a car accident. I have tryed to get help for him as far as trying for social security benefits but was told he didn’t work long enough. I don’t know what to do from here I am asking for some advice from here on what to do. Alot of people tell me they know of children getting help from a deceased parent that has never ever worked. Can u help me please.

Joe Escalante: Unfortunately Nicole, Social Security Benefits for a surviving child are tied to whether the deceased parent worked long enough to earn them.

Janos: If I’m changing my name legally, how do I go about changing the name on the deed, title on my house?

Joe Escalante: Call the county recorder in your area, or go to their website. They have forms for this, you fill them out, it takes a month or so.

Sue: When you are served divorce papers and refuse to sign, what is the time limit and will it be cancelled at a certain date?

Joe Escalante: I don’t know what the time limit would be in your jurisdiction but it looks like you are headed for a default judgment against you if you are in a no fault state. If you are in a fault state, you are headed for a trial and they will probably find grounds for a divorce so you are delaying the inevitable.

Stashia: Is it legal to be denied a job for a misdemeanor in the state of ga

Joe Escalante: If you own a business, you do background checks so that you can avoid hiring criminals. If this wasn’t allowed, less businesses would start up because people wont invest money in the private sector if the government forces them to hire people they don’t want to hire. However, the ACLU would just say this is a civil rights violation in at least some cases. Check this out:

Leann: I have a question I got a ticket a year ago for driving with no license and insurance. I went to court for it and the judge told me I could have insurance without a driver license. My husbands insurance company sent him a letter to exclude me from his insurance. Can they legally do this? Is the judge who told me I could have car insurance without a driver license right? Can you please help me?

Joe Escalante: I work as a volunteer temporary traffic judge here in Los Angeles. I see lots of people who get popped for driving without a license or insurance. Many of them some how come back into court with car insurance so they get the fine reduced. Who insures these people who aren’t even allowed to drive? I don’t know, but they do it. If there’s a claim however, it’s probably hell to get it actually covered.
As far as whether it is legal for the insurance company to kick you off the policy for not having a license. Let’s all be sensible here. It is and it has to be. Who would go into the insurance business if the government could force you to issue policies to people who don’t know how to drive?

Diana: I work as an administrative assistant for a Trucking Company in Texas. For over a year, I have been paid through a payroll company (with benefits, taxes withheld, etc). For the past 4 months, every employee has been receiving company checks, instead of Payroll checks, with no taxes withheld. They are not breaking down how we are paid (which is regular pay, which overtime, which commission…etc…) and all of the sudden we are contract labor. It sounds fishy to me, so asking….is this legal?

Joe Escalante: It sounds like an abuse. You should get them to explain their new policies in writing. This is important. Then you might want to file a complaint with the Texas labor commission if you want it to stop. Your job might stop too, so think about it. Make sure you have somewhere else to go. Classifying you as an independent contractor is not something they can do just because they want to. You have to qualify. E.g., you have to choose your own hours, your own tools, equipment, decide how work is performed, etc.

Stashia: if you give a person access to your account to make deposits but while they have this access they make some unauthorized withdrawals do they have the right to do this and how could you go about recovering your money is that considered embezzlement

Joe Escalante: You’ll never get the police to file an embezzlement report, or theft, or whatever, because they will tell you that you gave permission so if you have a beef on how much was taken you must sue the person in civil court. If it qualifies for small claims court in your area ($7,500 or less in California) that’s your best bet. If it’s more, you need to talk to an attorney. Make sure you revoke this authority you gave the person in writing immediately.

LegalZoom: That’s a wrap for Free Joe Friday! Thanks for your questions and of course to Joe for joining us. Have a great weekend and we’ll see you back here on Tuesday for more free legal advice!

ShareShare on FacebookTweet about this on TwitterShare on Google+Share on LinkedInEmail this to someone

Sign up for the LegalZoom newsletter!

Written by

September 13th, 2011 at 9:54 am