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What’s the Difference Between Custody and Adoption?

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Joe Escalante
Hi Joe,

What’s the difference between custody and adoption?

– Antonio Alvarado Rodriguez

 

Barely Legal Radio w/ Joe Escalante

Custody can take different forms. There’s the ever-changing, court-approved custody arrangement between separated or divorced parents. Then there’s temporary custody awarded to guardians for one reason or another; perhaps a mother has a reason for granting custody of her child to another family while the child lives with the family going to school near them, or trains for the Olympics, etc.

Sometimes a guardian has custody of an adult who has been deemed incapacitated by order of a family court proceeding.

These are all temporary and limited arrangements. They can be revoked or changed by petitioning the court. They are usually limited in scope. A child custody arrangement may not include the ability of the custodial parent to make major medical decisions without approval of the actual parents, but it would include authority to send the kid on field trips with the school, etc. Or an adult guardianship might include medical decisions, but not access to financial assets of the ward.

Adoption is permanent and involves a termination of the prior guardian’s rights. It generally cannot be revoked. After adoption, the adoptive parent has all the rights of the prior, or biological, parents. There are no limitations or strings attached like with custodial arrangements.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

Written by Johanna

March 28th, 2014 at 11:06 am

Posted in Legal News

I Created a Mobile App—Should I Market It or Try to Sell It to a Big Company?

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Joe Escalante
Hi Joe,

I created and published a mobile application that is published on iTunes and GooglePlay. HEIRLOOM is a mobile will creator that evokes the camera to capture images and allows the user to auto-populate the items into the specific bequests. I have a provisional patent filed.

Question: Should I market and pursue this business or pitch it to LegalZoom, Nolo Legal or another of the big boys in this industry? If so how do I get the info to the prospective buyer?

– Timothy Rizan

 

Barely Legal Radio w/ Joe Escalante

Hey Timothy.

That’s not so much of a legal question as much as a business strategy question. Should you invest money and keep all the rewards? Or let someone else invest their money and keep only a part, which might be bigger than 100% of what you get from doing it on your own?

It’s an age-old question. First thing I would do is to talk to an experienced patent lawyer to see two things:

  1. How much is the patent process going to cost, and
  2. What is the marketplace like for something like this.

A good patent attorney should know a little about the marketplace so he’s not wasting people’s money.

Good luck.

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

Written by Johanna

March 28th, 2014 at 10:57 am

Posted in Legal News

To Get the Most Liability and Asset Protection for My LLC, Should I Add a Partner?

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Joe Escalante

Hi Joe,

I’m running my LLC in Chicago, Illinois, as a sole proprietor. I’m not getting the liability and asset protection as a sole proprietor of my LLC. I’m considering getting a partner. What forms do I need to file?

– Gustavo Santana

 

Barely Legal Radio w/ Joe Escalante

1. Yes, in many states a single-member LLC would have less protection from personal creditors for its members than a multi-member LLC. However, Illinois, to the best of my knowledge, hasn’t really settled on how they are going to treat single vs. multi-member LLCs in many respects. This is a relatively new area of the law.

2. True, to get the fullest limited liability protection from personal creditors in all states, an LLC should have at least two members. However, don’t add your simpleton cousin to the LLC as a sham. The second owner can be a spouse or even that simpleton cousin, provided they are treated as a legitimate co-owner of the LLC.

If the courts smell a sham, they will likely treat the LLC as a single-member LLC. To avoid this, the co-owner must pay fair market value for the interest acquired and otherwise be treated as a “real” LLC member, i.e., they must receive financial statements, participate in decision-making, and receive a share of the LLC profits equal to the membership percentage owned.

3. Even if you get the other member, you could have a court battle that doesn’t apply Illinois law if you were doing business or own property in a state that has laws less friendly to LLCs than your home state. Where you file is not the end of the story when it comes to personal liability and asset protection in connection with your LLC. Also, the protections state LLC laws provide to LLCs may be ignored by the federal bankruptcy courts.

I don’t practice in Illinois, but they seem to require this form LLC-5.25 when adding a partner.

http://www.cyberdriveillinois.com/publications/pdf_publications/llc525.pdf

Attorney Joe Escalante answers your legal questions for free on our Facebook page every Tuesday and Friday at 10 a.m. PT.

 

The advice Joe gives is general; it is solely his opinion and not that of LegalZoom. He is a licensed California Attorney with years of experience; users from other states should take care to review the laws in their own states. LegalZoom is not a law firm. This free service is intended to get you headed in the right direction, not to replace an attorney. This is a public forum. No attorney-client relationship is formed with Joe, or LegalZoom, and the attorney-client privilege does not apply. LegalZoom does not verify, validate, or confirm the advice given by Joe. LegalZoom cannot guarantee the quality, or reliability of any legal advice provide by Joe.

Written by Johanna

March 28th, 2014 at 10:16 am

Posted in Free Joe,Legal News

Tagged with

Does Your Use of Company Benefits Come with Privacy?

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Shutterstock/Andrii Kondiuk

Shutterstock/Andrii Kondiuk

If you’re reading this at work, you’re most likely aware that anything you do online can be monitored by your employer. From Googling “polar vortex” last month to all the news you read this week, your online activity is practically as public as your power suit.

But what sort of privacy can one expect of more personal issues related to the workplace, such as health insurance claims or use of company benefits? This was the question raised when AOL’s chief executive started an internal town hall meeting last month about reduction in benefits—and nonchalantly referenced two private claims-related situations as reasons for cutting back benefits for all AOL employees.

While announcing a change in the way retirement plan matching benefits would be paid out, Tim Armstrong stated: “We had two AOL-ers that had distressed babies that were born that we paid a million dollars each to make sure those babies were OK in general. And those are the things that add up into our benefits cost.”

Almost immediately, news outlets, blogs and social networks were abuzz with conversations about “distressed babies” and the implications of outing employees whose use of health insurance benefits came with a certain expectation of privacy. The mother of one of the babies Armstrong referenced wrote a piece in Slate outlining the challenges faced by her premature daughter and how it felt to have a personal situation be exploited as justification for corporate cost-cutting.

HIPAA, the Health Insurance Portability and Accountability Act, restricts sharing of confidential health information as a whole. For employers, in most cases, only certain company representatives are allowed to see such information as it relates to employee use of company benefits.

In the case of AOL’s CEO, legal experts question whether he was an authorized recipient of such reporting. “It’s likely an impermissible disclosure,” said NY-based lawyer Lisa J. Sotto in a New York Times article on the topic. “There is a permissible group that is pinpointed to administer the health plan, and they are not permitted to disclose that information [beyond what’s approved].”

Ultimately, AOL reversed the change to its retirement policy but questions of employee privacy remain. And besides some initial scrutiny of Armstrong’s actions, there don’t seem to be many answers.

Written by Bilal Kaiser

March 24th, 2014 at 3:54 pm

Posted in Legal News,Privacy

Tagged with

Waiting on New Web Domain Names

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Shutterstock/Mouselink

Shutterstock/Mouselink

The ever-expanding World Wide Web has gotten even bigger with the Jan. 29 rollout of new domain possibilities beyond the .com spectrum. But if you own a small business, is a new domain your best bet or just a bluff?

A Wall Street Journal poll reported that a majority of Web domains still ended in .com even despite the fact that the possibility of new ones like .biz or .info cracked the Internet world open. As of 2013, the report found that 111.8 million of the 147.3 million domains ended in .com.

The addresses for these new domains were set to go on sale through registrar sites like GoDaddy.com and Name.com and most will cost anywhere between $10 and $40 a year, compared with up to $15 a year on average for most .com addresses currently, the Wall Street Journal reported. Some domains, however, were being reserved at higher prices for premium buyers willing to dish out the cash – like .clothing.

“It’s a marketing opportunity,” Avery Pack of Dania Beach, Fla. Told the Wall Street Journal. Pack’s company, Republic Bike Inc., handles all things bicycle and he said there were endless possibilities for business owners looking to take advantage of new domains.

Some of Pack’s ideas included using a new domain to build additional Republic Bike websites for customers to interact by posting photos, videos and other content. He argued that small business owners undoubtedly use Web addresses as an investment in their brand and should consider all the possibilities to remain relevant.

Don Teague of Coppell, Texas told the Wall Street Journal he was waiting for the coveted .christmas to arrive for his seven-year-old business, Synchronized Christmas, Inc., which specializes in holiday light displays. According to Teague, the new domains provided him with an opportunity to make his brand more memorable to consumers.

Seven new Web domains came out late last month, including .bike, .clothing and .singles, opening the door for countless new sites. But some also argued the shift in Web psyche would confuse consumers.

Jay Sofer is the founder of a small locksmith service in New York with the website Lockbustersnyc.com and told the Wall Street Journal that buying a new domain would mean having to “start from scratch” in getting the word out. His concerns echoed others who have wondered whether or not a new domain would fail to stick with Web surfers.

Thousands of business owners like Sofer have already shelled out enough money working to build and protect a brand in the .com world, and the Wall Street Journal said they might be wearier to make the change.

But in the end, domain registrars said the shift in Web language was just another chapter in the ongoing saga that has become the Internet. And with enough time, it is likely that new domain endings beyond the .com realm may become more socially accepted amongst consumers, registrars said.

Written by Phil Corso

March 24th, 2014 at 7:59 am

Target’s Data Breach

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Shutterstock/Northfoto

Shutterstock/Northfoto

According to a U.S. News & World Report article, as the year 2014 started, there were over 317 million people living in the United States. Based on a January update by Target regarding the data breach, a good number of us shopped at Target recently.

“As part of Target’s ongoing forensic investigation, it has been determined that certain guest information—separate from the payment card data previously disclosed—was taken from Target. This theft is not a new breach, but was uncovered as part of the ongoing investigation. At this time, the investigation has determined that the stolen information includes names, mailing addresses, phone numbers or email addresses for up to 70 million individuals.”

A February 4, 2014 statement on Target’s website states that because of the data breach, they plan to implement chip-enabled smartcard technology by early 2015, which is six months earlier than previously planned.

Regardless of what Target plans to do in the future, the company is dealing with litigation now. A class action lawsuit was recently filed in U.S. District Court in Madison, Wisconsin. A Wisconsin State Journal article reports that not only are consumers are suing, but banks are joining in too.

“Eric Haag, one of the plaintiffs’ lawyers, said that this is the first Wisconsin case against Target over the data breach, and one of about 80 pending nationally. But this case is among the few that seek to certify not only a class of customers but a class of banks.”

What could be even more worrisome to the retailer are reports that two months prior to the incident, its own cybersecurity staff suggested an in-depth review of the payment system security. According to the American Banker article, the review was postponed initially leaving hackers able to compromise the system.

Written by Lisa C. Johnson, Esq.

March 14th, 2014 at 12:47 pm

Don’t Take a Bite Out of the Cronut® Name

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Shutterstock/Martiapunts

Shutterstock/Martiapunts

In May of 2013, Chef Dominique Ansel introduced the Cronut, a croissant-donut pastry, to customers at his eatery, the Dominique Ansel Bakery in New York. The dessert has been so revered since then that customers line up around the block every single morning outside of the bakery, sometimes arriving before 7 a.m. in order to ensure a spot.

Word quickly spread about the Cronut and it was soon being imitated in other bakeries across the United States and throughout the world. A few months after he first launched the yummy treat, Ansel decided to trademark it with the United States Patent and Trademark Office (USPTO). On January 14, 2014 that trademark was granted underneath International Class 30, which is a food category that includes confectionaries, pastries, and breads.

According to Natalie S. Lederman of Sullivan & Worcester, this trademark will “provide enhanced benefits and protections to Chef Ansel, including a broader geographical scope of protection and international deterrence of copycatters, the right to sue infringers in federal court and recover maximum monetary damages he would otherwise be ineligible for, and ultimately, the right to apply for incontestability status.”

Ansel could potentially go after numerous eateries worldwide that are making and selling imitations of his Cronut creation if they use the actual name “Cronut.” However, if they don’t sell the imitations under the trademarked name, there is not much he can do. Some are calling their offerings croissant donuts, while others are serving up “kronuts,” “croughnuts,” and “doissants.” These knockoffs can be found in places like Texas, Spain, California, and even New York City itself.

The pastry chef tweeted out his frustration at the situation last June, saying, “Hey there copycats, if we’re ever in a room together, I will be able to look you in the eye. Will you be able to do the same?

The trademark for Cronut® has given Ansel more credibility, but even that won’t be able to fully stop the fakers.

 

Written by Kylie Jane Wakefield

March 11th, 2014 at 8:09 am

Family of New York Dolls Guitarist Battle Over Estate

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New York Dolls on AVRO's TopPop by Avro via Wikipedia Commons

New York Dolls on AVRO TopPop by Avro via Wikipedia Commons

 

 

 

In life, rocker Johnny Thunders was an example of all things rock ‘n roll, but in death, his story is emblematic of what inadequate estate planning—no matter how small—could do to a family.

The New York Dolls member died in 1991 at age 38 of what many believe was a drug overdose in a Louisiana Hotel. And in his death, Thunders—also known as John Genzale—had only $4,000 to his name. And while many—including Thunders—thought that might not seem like a lot, the consequences of improper estate planning have since plagued his family.

“Estate planning is vital for everyone,” Rocco Beatrice, managing director of Estate Street Partners said. “In the scheme of one’s life, the amount of money it takes to set up documents that provide many positives, such as limiting litigation, qualifying for Medicaid nursing home care, and leaving specific instructions for the distribution of wealth, is well worth it.”

Thunders’ sister Mariann Bracken landed her late brother’s estate and made several hundreds of thousands of dollars through investments over the years. The estate grew to more than $250,000 with periodic payments being made out to the family every year. That kind of cash might come as a surprise to some people, Beatrice said.

“You never know what is going to happen if you don’t estate plan with a will or a trust,” Beatrice said. “People are always underestimating their worth and don’t take into account things like asset growth, real estate, potential inheritances, and windfalls.”

But her death in 2009 left Thunders’ estate and those annual payments once again in the balance.

Thunders’ daughter Jamie Michelle Suzanne Genzale was then named the administrator of the rocker’s estate but she was unable to pay the $75,000 bond required to oversee the payment.

“The issue of a bond to manage an estate or trust is not often discussed. The majority of states require some kind of ‘insurance’ to protect the beneficiaries,” Beatrice said. “Either the estate or the person charged with managing the estate must pay for the bond. This can put a great strain on relatives.”

The estate has since been at the core of a bitter family legal battle, in which Thunders’ sons Vito and Dino Genzale—who have not received a payment in four years—have sued their sister Jamie to bar her from gaining control of the remaining $160,000.

Thunders’ estate debacle has since become a lesson for all, according to Estate Street Partners. Such legal battles could be avoided with things like a will, or an irrevocable trust for an LLC that would hold onto revenues, the group said.

Beatrice said that because Thunders was an entertainment celebrity, he could have collected royalties even after his death.

“You don’t want the state deciding what happens to your assets after you pass. Most of the time they just pick the nearest relative and put them in charge with very little guidance,” Beatrice said. “Best to put together and estate plan and make sure you’re the one dictating where your assets go.”

Written by Phil Corso

March 7th, 2014 at 1:34 am

Government Shutdown Impact on Small Business Loans

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Small Business Administration Seal by US Government via Wikipedia Commons

Small Business Administration Seal by US Government via Wikipedia Commons

It wasn’t the owner of your favorite local mom-and-pop shop who decided to shut down the United States government in October, but they were the ones who paid the price in the end.

Small business lending took a serious hit as a result of this year’s government shutdown, according to the Biz2Credit Small Business Lending index, with approval rates dropping as high as 20 percent.

Bigger banks with over $10 billion in assets recorded a measly 14.3 percent approval rate in October alone. Small banks dropped from 50.1 percent in September to 44.3 percent because of the shutdown, while credit unions dropped 4 percent to a 43.4 percent approval rate, SmallBizTrends.com reported.

And with the Small Business Administration out of commission, the numbers had nowhere to go but down.

“SBA loan approvals stalled because the agency was closed for three weeks,” Biz2Credit CEO Rohit Arora told Smallbiztrends.com. “Similarly, non-SBA loans could not be processed during the government shutdown because the IRS was not operating.  Banks could not acquire income verification from the IRS during the shutdown, which is needed to approve many loan requests.”

The damage spanned far beyond just the shutdown, too, Arora said. According to the CEO, it should take months for the SBA to play catch-up with a huge backlog of loans to process –all of which might be impacted by future political impasses in Washington, D.C.

But there was a silver lining in the government’s inability to execute earlier this year –especially if you worked for a non-traditional alternative lender. Small businesses were left desperate for anyone willing to pick up the slack leftover from the SBA on lockdown and their wishes were granted.

Reports showed that approval rates for alternative lenders skyrocketed to an Index-high 67.3 percent in October 2013, up from 63.2 in the previous month. But nothing was perfect for small businesses, which in return had to pay much higher interest rates to stay afloat.

“Small business owners desperate for capital during the shutdown turned to alternative lenders, who were willing and able to provide money, but at a much higher interest rate than a bank or credit union would charge,” Arora told the website.  “The stop in the flow of capital came at a time of year when small businesses traditionally search for funding.  The economy, which is still in the weak recovery phase, simply cannot sustain this kind of disruption.”

Those dark days, however, should be behind America’s small businesses. The government has since rebounded and so will small businesses, Arora told the small business website.

What’s Trending Now in Small Business

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Shutterstock/Tyler Olsen

Shutterstock/Tyler Olsen

Last year, small business owners and entrepreneurs had to pay more attention to technology, the Internet, and mobile than ever before. If they weren’t executing content marketing campaigns online, optimizing their marketing and sales through mobile, or setting up security systems to combat cyber attacks, they would be left in the dust.

The following are some trends that small business owners need to be aware of and put into practice in order to succeed in today’s climate.

Protecting against cyber security ambushes

According to USA Today’s Steve Strauss and a McAfee study, cyber criminals are going after small businesses more and more because they are easy targets. It’s been found that a majority of small businesses have no security in place. After they’re the victims of a cyber attack, about 60% of businesses can’t recuperate and are forced to close up shop within six months’ time. Small businesses should put a firewall in place and hire an IT specialist to fight back against the hackers.

Transitioning from paper to digital

Small business owners are living in a digital world that is dominated by the cloud, email, and file sharing websites. These days, small businesses need to be using these digital resources and eliminating paper and hard copies. It saves time and money, and makes documents much easier to share among employees.

Making original, noteworthy content

Instead of focusing on SEO, big companies transitioned to creating high quality content online. That way, they would rank higher on Google and other search engines and increase their sales, gain new customers, and establish their expertise in the market. Small businesses should be looking at the example set by corporations and produce blogs, videos, photographs, and other sources of valuable content that will be shared by consumers.

Structuring a mobile plan

Strauss cites evidence from different studies that “63% of women and 73% of men check their cell phones at least hourly” and “40% of the time spent on the Internet is done via mobile phones.” This means that people are using their phones for everything: to browse, to shop, and to socialize. Small business owners should be creating mobile-friendly websites and online stores as well as sending offers out on mobile phones. Otherwise, they’re going to miss out on a key portion of their customer base.

 

Written by Kylie Jane Wakefield

March 3rd, 2014 at 3:15 pm