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Fighting for the Right to Same Sex Divorce

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rainbow flag by torbakhopper on Flickr (CC license)

rainbow flag by torbakhopper on Flickr (CC license)

The recognition of the right to marry in some states has been an immense step forward for same sex couples, but several jurisdictions that have not recognized that right are now facing another, related legal question: What happens when such marriages don’t work out and the couples want to divorce in their state?

If the couple seeks divorce in a jurisdiction that recognizes same sex marriage, there isn’t an issue as the law provides a framework just as it does for straight marriages. Problems arise, however, when a same sex couple was legally married in one of the states that allows such a union but then file for divorce in a state that doesn’t.

After all, same sex “conscious uncouplings” involve the same issues as straight marriages from dividing assets and debts to, in some instances, child custody and support. So what is a legally married same sex couple to do when they want to split up but don’t reside in a state that recognizes same sex marriage?

This is the dilemma faced by same sex couples around the country, including in Texas, where a district judge allowed a same sex divorce to continue only to see the appellate court halt the divorce and custody proceedings pending further appellate proceedings. Stay tuned!

The most obvious solution in such instances is for the couple to move to the state that granted their marriage (or another state that would recognize their divorce), but logistically that isn’t always possible. Advocates of same sex marriage, though, would argue that it also shouldn’t be necessary as it would be treating same sex married couples differently from straight married couples.

In any event, even if a divorce is recognized out of state, if the couple holds property within a state that doesn’t recognize same sex marriage, there is a serious question as to what would happen to that property, so it may not be as “easy” as picking up and getting a divorce elsewhere.

In addition to the proceedings in Texas, Kentucky and Mississippi also have right-to-divorce cases in progress, and at least one state has ruled that same sex couples have a right to divorce in the state even though, technically, their marriage isn’t legally recognized there. In 2011, the Wyoming Supreme Court granted a divorce to a same sex couple who had been married in Canada.

What do you think of the right to divorce? Should it be universal?

Written by Michelle Fabio

April 28th, 2014 at 10:21 am

Posted in Divorce,Legal News

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What Legal Form Should I Use To Keep Others from Taking My Business Idea?

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Joe EscalanteHi Joe,

If you have a business idea and discuss it with people who have the resources to make it happen, what legal form/contract should be used to keep them from taking that idea for themselves? Where can the form/contract be found online?

- Kacy Dinh


Barely Legal Radio w/ Joe Escalante

That’s a nondisclosure agreement or NDA. I’ve created those as an attorney a few times, and they can be found in several places online, but LegalZoom seems to have an NDA form that is designed to protect business plans, so I would check that out if I were you.

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


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Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.



Written by Johanna

April 24th, 2014 at 8:52 am

Posted in Free Joe

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Does My Mom Need an Attorney and/or CPA After Receiving a Large Inheritance?

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Joe Escalante

Hi Joe,

Mom is going to receive a huge estate from her community property husband when he passes in the near term. All of her attorneys are the family attorneys that manage millions for the large family. Is it prudent for her to hire a personal attorney and CPA that is only looking out for her interest only?

- Ralph Stokes


Barely Legal Radio w/ Joe Escalante

Community property including jointly held real property is going to pass to her automatically. No need for a separate attorney to look out for her there. If she is the executor of the estate, then she’s in charge of the rest of it as well. She shouldn’t need an extra attorney in that scenario either.

If the executor, trustees, and trust administrators are people she doesn’t trust, it would be worth it to have another attorney, whom she does trust, sit down with her and go through all documents and correspondence relative to the transfer of estate assets. Good luck.

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


©, Inc. All rights reserved.

Disclaimer: Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. Your access to the website is subject to our Terms of Use.


Written by Johanna

April 23rd, 2014 at 9:00 am

Posted in Free Joe,Legal News

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The Silicon Valley Spirit Goes Global

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Watch out, Silicon Valley and Silicon Beach: there’s a new, thriving global start-up scene in town—or rather, on multiple continents. From South America to the Indian Subcontinent, entrepreneurs, venture capital firms and established American startups are looking to grow their ideas outside of California and the U.S. altogether.

In India, for instance, the New York Times reports that more than 40 U.S.-based VC firms have opened offices or branches in India over the last eight years. Adventurous entrepreneurs are landing in Mumbai or Bangalore to target the large middle class population with ideas for increasing efficiency or solving a major need. But once there, many of the company founders are dealing with challenges they didn’t have to think about back at home.

For one, it’s more challenging to recruit good employees into a startup in India. Whereas college graduates flock to the Bay Area or Santa Monica for the chance to join a fledgling startup, unknown, risky businesses aren’t considered as cool in India; employees would prefer a large, stable company for career growth as opposed to stock incentives.

And the path to get basic things done like opening a bank account, turning on the power, or installing Internet can be ridden with red tape and corruption. Governmental support is not guaranteed, either. The New York Times cites the case of Saf Labs where the Indian government reduced funding for certain biotech initiatives and left the previously profitable company in a tough financial situation.

On the other hand, one country that’s making it an official goal to attract startups to their shores is Chile. Start-Up Chile, a government-sponsored program, has intentions of attracting eager entrepreneurs hoping to change the world and make Chile into “the definitive innovation and entrepreneurial hub of Latin America.”

Apparently it’s catching the right eyeballs. According to the program’s website, more than 1,000 entrepreneurs submitted their ideas during the last application round and only 100 were chosen to receive no-strings-attached seed money (to the tune of $40,000 USD) and in-country support. Part of the agreement requires the entrepreneur to mentor locals, network within the community and sell the idea of startups almost as much as the startup itself. “There is a cultural change that needs to take place in Chile,” stated Horacio Melo, cofounder of Start-Up Chile. “We need Chileans to be inclined to innovation, to embrace risk and failure, and not to be afraid of making their businesses go global.”

Sounds like a great gig if you can get it. Selected entrepreneurs are required to stay in the country a minimum of only six months. “We are more than happy to ‘let them go’ once they are done with the program, because they already made a significant social impact and, as a public policy, that’s what we care about the most,” added Melo.

The good news is, if you’re looking to start a business of your own you don’t have to go as far as Chile or India to do so—you don’t even need to have a passport. When you’re ready, LegalZoom offers a host of services to start your own small business including incorporation, intellectual property protection and legal assistance through its legal plans.

Written by Bilal Kaiser

April 23rd, 2014 at 8:26 am

Cities and States Contemplate Paid Sick Leave for All Workers

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Shutterstock/Sam72<br />


Sickness can be spread with a handshake or by way of a contaminated keyboard. In work environments, colds, viruses, the flu, and other illnesses can easily be transferred from one colleague to another. However, despite these facts, many employees in the United States still choose to go into their work, even when they are under the weather.

CBS News’ Aimee Picchi said that sick workers are going into work before they make a full recovery. Paid sick leave exists to curb this national problem, according to the National Partnership for Women & Families. The organization finds that failing to supply paid sick days is a public health problem.

Currently, only one state, Connecticut, offers paid sick leave. San Francisco, Seattle, and Milwaukee have also passed legislation that requires employers to give paid sick leave, while New York and Arizona are said to be considering similar laws. Employers are torn about this issue, considering that part-time retail workers, per say, may take advantage of it.

Picchi cited a study by NSF International that found that 25 percent of Americans go into work despite being sick. One third of employees will wait until their symptoms are in full effect before they take a day off.

Across the United States, 40 million workers don’t have paid sick leave, according to a study by the National Partnership for Women & Families. The reasons for going into work even when employees are feeling ill vary. Forty-two percent of respondents said that they wouldn’t take off because they had too much work to do. Thirty seven percent said it would be a strain on their finances to stay home.

Though 57 percent of workers would tell their colleagues to go home, a majority of the respondents said that they saw the sick employees who do show up as hard workers.


Written by Kylie Jane Wakefield

April 22nd, 2014 at 8:44 am

Posted in Legal News

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Tweeting For His Generation

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According to a report by Pew Research, Millennials are “confident, connected and open to change.” They were “born after 1980” and are the “first generation to come of age in the new millennium.”

This past February, a high school senior may have taken it upon himself to show us just what this new generation is about. A Boston Magazine article explained how a tweet by Nick Barbieri, a student at North Attleboro High School in Massachusetts almost resulted in his being suspended.

After a snow storm, the school’s official Twitter account tweeted, “No school tomorrow – see you in June!” Barbieri’s  Twitter response to the prospect of having to make-up school days in June included the F-bomb with “#seniors #nomakeup.”

He was home when he sent out the tweet. It was late at night and he was using his personal Twitter account. Soon after his tweet, school officials called his home and asked him to delete it. Barbieri complied. When he went back to school, he was told that he might be suspended and could face detention as well. Further, he was pulled out of his classes numerous times over the incident and asked to delete additional tweets.

Concerned that his First Amendment rights were being violated, Barbieri tweeted to the American Civil Liberties Union (ACLU) to take up his cause. They did. At the time of the Boston Magazine article, he had more than 30,000 followers. Now, he has over 100,000 followers.

The ACLU of Massachusetts sent an email to North Attleboro High School siding with Barbieri, stating that the law was on his side and asking for an apology. Below is an excerpt from the email.

“While school officials have a right to control the conduct of students in class and at other school activities, they cannot possibly punish teenagers for their personal conversations and comments about the school, especially outside of school. It is quite simply mindboggling to contemplate schools imposing discipline for every use of a swear word in relation to the school that a young person posts on Facebook, Twitter, or other social media. Simply because social media may make these comments more widely available does not change the basic rules protecting the freedom of speech of students outside of school.”

The school decided not to discipline Barbieri and he succeeded in giving a proper civics lesson to us all.

Written by Lisa C. Johnson, Esq.

April 16th, 2014 at 7:56 am

Posted in Legal News

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Burning Man Receives Nonprofit Status

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Shutterstock/ Watchtheworld

Burning Man is on fire.

The annual desert destination in the middle of Nevada has been ignited into something much bigger since achieving nonprofit status, sparking what could be a much more global reach.

But what is Burning Man?

It isn’t easy to explain this experimental community experience. Even Carly Schwartz of the Huffington Post had trouble putting her Burning past into words.

“It’s like being on Mars, except I’ve never been to Mars,” she wrote on the site.

Essentially, Burning Man pops up each year in a remote location in Nevada’s desert land to foster a new world full of artistic expression built from scratch. It is bizarre – and when it’s all over, it gets burned to the ground.

The whole event might sound strange at first, but it has grown over 24 years into a nearly 70,000-attendee, $20 million endeavor, The Huffington Post reported. And now, it might essentially sprout up anywhere it wants to.

Black Rock City, LLC, has spearheaded the festival since the late ‘90s and was granted nonprofit status in March after the Burning Man Project took full ownership of the company. It was an important move for fans of the festival because it paved the way for other similar projects and a more year-round kind of community that supports civic engagement, education and the arts.

“After 24 years of tending our garden in the desert, we now have the means to cultivate its culture worldwide,” founder Larry Harvey said in a statement on the Burning Man blog. “Sometimes things just pop, and this is one of those moments.”

The nonprofit title will bring together Black Rock City, LLC and the Burning Man Project and create what the Huffington Post reported as a “hub for projects seeded at Burning Man and/or based on its principles to live and thrive year-round.” The event’s blog reported the Burning Man Project’s approach as maintaining the festival’s vibe and fostering it through other projects by “scaling to meet the growing demand for tools and resources to reproduce the Burning Man experience outside of Black Rock City.

“We’ll be taking the momentum people were getting from their experience at Burning Man and working to manifest it in our own communities,” Marian Goodell, who will oversee the new nonprofit, said in a report from The Huffington Post. “There are opportunities for people to do what they’ve learned at Burning Man outside Burning Man. We’ll help them tap into each other.”

The shift in status has left Burning Man fans gasping for a hint of where the festival might go next, but those in charge of the event have kept mum for now. They did, however, promise to deliver some big news in the coming weeks as they map out the year-round and worldwide approach now made possible through the nonprofit status.

“We are deeply focused on keeping the Black Rock City event a thriving entity and beautiful experience that feeds into the possibilities beyond Nevada out here on the Grand Playa of human society,” the Burning Man blog post read. “In the coming months we hope to share our progress in technology, communications, fundraising, community relations, network development, and of course, the building of the philosophical center.”

The nonprofit already has several projects under its belt, including one with Zappos founder Tony Hsieh that helps “inject arts and innovation into the growing technology hub in downtown Las Vegas,” the Huffington Post reported.


Written by Phil Corso

April 15th, 2014 at 8:19 am

Don’t Say It, If You Don’t Mean It

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Since the recent news that Gwyneth Paltrow and Chris Martin were splitting up, many of us may wish that we could “un-hear” the phrase “conscious uncoupling.” But wishing doesn’t make it so.

Shutterstock/Matthew Benoit<br />

Shutterstock/Matthew Benoit

As wedding season approaches, there will be couples deciding to prevent future divorce proceedings and cancel the upcoming nuptials. According to SkyBride, over 250,000 couples call off their weddings each year.

Other engaged couples may not even make it to the wedding planning stage, but the break-up can be just as brutal. Sometimes still winding up in court.

Back in December, ABC News reported on a Georgia couple, Melissa Cooper and Christopher Ned Kelley. The two had lived together since at least 2000 and had a child together. In 2004, on the day before Christmas Eve, he asked her to marry him and gave her a ring worth approximately $10,000.00. Cooper accepted and they continued living together.

Sometime after the proposal, she learned that her fiancée had been in long term relationship with another woman. However, they worked things out after he promised to marry her and that he would stop seeing the other woman.

In 2011, Cooper confronted Kelley about his involvement with a different woman. This time she was told that he wanted to be with the other woman and that she and her children needed to move out of their home.

Cooper sued Kelley in Coweta County Superior Court and won $50,000.00 in a bench trial for her claims of breach of promise to marry, fraud and attorney fees. Kelly appealed to the Georgia Court of Appeals and the decision was affirmed.

In the end, Kelley did not pursue any further appeals and the $50,000.00 was paid to Cooper, according to her attorney, Jason Smith of Southern Piedmont Law in Newnan. “Now this is a precedent,” Smith said.

Case closed.

Written by Lisa C. Johnson, Esq.

April 8th, 2014 at 1:00 pm

Posted in Lawsuits,Legal News

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“Dallas Buyers Club” Pirates Sued in New Copyright Suit

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Shutterstock/Helga Esteb<br />

Shutterstock/Helga Esteb

“Dallas Buyer’s Club” received a lot of attention this past year for its compelling subject matter and actor portrayals. However, the producers are now pursuing a legal battle with pirates who illegally downloaded and shared the Oscar winning film.

According to Variety, back in February, Dallas Buyers Club LLC, which posses the copyright to the film, filed a lawsuit in U.S. District Court in the Southern District of Texas. Voltage Pictures, which acted as a co-producer, is now going after 31 individual torrent users for settlements. Its law firm created a system to target users after “The Hurt Locker,” another one of its projects, was being illegally shared as well. The offenders could settle in a short time by paying thousands of dollars to the company.

Though piracy of movies runs rampant, it’s difficult to catch perpetrators who may hide IP addresses or live in many different parts of the country. Oftentimes, it’s complicated and plaintiffs are required to file lawsuits wherever each torrent user resides. Variety’s Ted Johnson writes, “The plaintiffs in this suit indicated that they would attempt to identify each user by attempting to obtain the names behind IP addresses from Internet providers, something that cable and telecom companies have often resisted.”

The lawsuit stated that geolocation technology helped the plaintiffs figure out IP addresses and then deduct where the users were living. They are being monitored for any illegal activity, too.

The movie business has been trying to deal with torrent users for a long time. Despite the challenges it presents, Voltage Picture’s principal Nick Chartier is dedicated to the cause, and has been vocal about the consequences of piracy on smaller budget movies and independent filmmaking.

Written by Kylie Jane Wakefield

April 7th, 2014 at 3:27 pm

Mississippi’s Extended New Small Business Rate Incentives Provide Savings in Startup Utility Costs

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Small business owners face a host of challenges and costs in starting and running their own companies, from startup fees to insurance to taxes. Mississippi is trying to ease the burden of utility costs for entrepreneurs who keep their businesses—and those valuable jobs—within the Hospitality State.

A program called the Small Business Rate Incentive, which was established in 2011 and was recently extended through 2014, provides utility rate incentives to small businesses in Mississippi. The state government has joined forces with its major utility companies to offer business owners savings of anywhere from 15-25% on their utility bills.

“We have helped over 1,100 new small businesses save over $400,000 in start up costs and have helped contribute to creating over 650 new jobs in Mississippi,” stated Brandon Presley, Northern District Public Service Commissioner, who originally authored the bill.

Qualifications for the utility incentives change depending on the time the business has been in existence, the number of full-time employees and the building in which the business is housed. For example, one of the state’s utility companies offers a reduction in fees if the shop is located in a building that has been vacant for at least six months.

“This incentive is solid encouragement to Mississippi entrepreneurs that their utilities and their state stand behind them in the desire to bring their goods and services to the Mississippi marketplace,” Presley added.

Perhaps neighboring states will consider similar programs and incentives as smaller cities across the country continue to recover from the recession, helping in their struggle to retain jobs and valuable talent within their communities.

For more information: Mississippi Public Service Commission’s Small Business Help Center

Written by Bilal Kaiser

March 31st, 2014 at 3:26 pm