Who Gets The Marital Home?

You owned your home prior to your marriage. You wrote the check for the down payment. You made every mortgage payment, kept the property taxes current, paid the utilities, funded the remodeling, even during your marriage. Only your name is on the title. So, the home is yours, right? After all, your spouse merely moved into it, your spouse’s name is not on the title, not a dime from your spouse went to it.

Not necessarily. “Title” to real estate is not the same as a “marital interest” in real estate. Title is the link between the person who owns property and the property itself – that is, it is the legal right establishing ownership. Marital interest, on the other hand, is a right to a share of the property. This may be a legal interest or an equitable interest depending on the statutes in your state. This marital interest is why, for example, a husband who is the “sole owner” on his home mortgage or deed can end up having to pay his wife half the value of home’s equity at divorce.

What rights you and your spouse have to your home and the property inside depend on the facts of your case. If you are divorced, then your divorce decree should state those rights. If you are separated but not divorced, you are in a precarious position. If you deny your spouse access to the house, you may deprive her or him of other personal property (this is a crime in some states) or paint yourself as the unreasonable spouse bent on doing no good in court. This tarnishes your credibility. But, your spouse may encumber property or sell it and conceal the profits if you let him or her inside.

Even if you owned your home prior to your marriage, your spouse will raise three arguments to take a share of it when you divorce:

1. The property is comingled. Commingled property is assets and debts that were nonmarital but which were traded in to acquire new property during the marriage, repaired or enhanced during the marriage with marital funds, or, in some states, treated as marital property by written agreement or use during the marriage. A good example is a classic car purchased as a bachelor that you remodeled during your marriage with money you earned at work and deposited into a joint bank account. The statutes and case law in your state will dictate the extent, if any, your court will separate the marital from the nonmarital components of the property. Some courts refuse to do any separating, reasoning that the nonmarital property lost its status forever as soon as marital property mixed with it. Other courts will attempt separate valuations if the evidence presented is sufficient. A skilled attorney and expert testimony from an appraiser are essential here. The valuation is more difficult if the period of time of the comingled status is lengthy or the circumstances in which the property became comingled are complex. Do a cost-benefit analysis with your attorney to determine whether the fees you spend to prove the separate, nonmarital valuation are worth the anticipated value you will retain.

2. The property appreciated during the marriage. Appreciation is the property’s increase in value. During the marriage, the appreciation may be passive or active. Passive appreciation is the increase in value due to the surrounding circumstances, not your conduct. Active appreciation, on the other hand, is the increase in value due to your contribution, such as remodeling, reinvesting, and so forth. In most states, passive appreciation is not marital property. However, active appreciation due to one or both spouse’s involvement during the marriage, financial or otherwise, is. For example, in Reeves v Reeves, 226 Mich App 490; 575 NW2d 1 (1997), the Michigan Court of Appeals held that real estate equity that accumulated before the parties’ marriage in a home and several rental properties the husband owned was the husband’s nonmarital property because he had supplied the down payment and the mortgage payments, but the real estate equity that accrued during the marriage was marital property subject to division because it was attributable to the parties’ use, remodeling and management during the marriage. In addition, the entire equity of a rental property the husband purchased prior to the marriage was his nonmarital property because the appreciation was “wholly passive,” due to neither his nor his wife’s activities during the marriage.

3. The property is invadable. Invadable property is one spouse’s property the court nonetheless divides because the facts and circumstances of the case, as applied to the law for invasion, justify division. Each state has a different invasion law, so be sure to research the laws in your state to determine what, if any, invasion will occur in your case. In general, however, the laws allow invasion if the other spouse “needs” a share of the property due to an inequitable division of marital property or other financially dire circumstances and/or the spouse contributed to the property’s acquisition, use or maintenance, such as by helping to remodel it.

If you are concerned about your rights to pre-marriage property, you should carefully document what property you believe is yours, when you acquired it, what you did with it during your marriage (encumbered it, remodeled it, used it together, etc), and your guesstimated value. This information will be helpful as you negotiate your divorce settlement. Be prepared to address the comingled, appreciated and invadable arguments. Create a timeline for the property. Obtain appraisals to support your arguments. Most of all, do a cost-benefit analysis to determine whether the attorney fees and costs you incur to keep your property yours is worth the value, financial and sentimental value alike.

ERISA and Employment Law

The Employee Retirement Income Security Act, or ERISA, was passed in 1974 to protect workers who are retiring or need to collect benefits from their employers. The law was introduced as a motion to regulate the laws regarding employee benefits, and has spawned a series of amendments and subsequent laws. In general, ERISA can be referred to in a more expansive sense, as the law is usually used to represent any workers’ benefits legal problems. However, the Internal Revenue Code also contains several similar provisions for benefits and compensation.

The primary function of ERISA is to make it mandatory for employers to inform their employees about the terms and conditions of their compensation and retirement benefits. This can also be extended to require companies to make a certain financial contribution to the well-being of their employees, namely in their compensation and retirement packages.

One of the most visible and widely used aspects of ERISA is its establishment of a more efficient judicial system for workers’ compensation cases. ERISA is commonly used when modifying the judicial administration courts that have jurisdiction over workers’ compensation cases. In addition to solidifying the basic processes of the court, it also establishes a more streamlined manner for employees to file grievances with their employer or benefit provider or appeal denied claims for benefits.

As a result of the law’s wide-reaching importance, several additional laws have been passed to address particular concerns. In 1985, the Consolidated Omnibus Budget Reconciliation Act, also known as COBRA, provided extended coverage plans for employees. In 1996, the Health Insurance Portability and Accountability Act, or HIPAA, reinforced worker’s rights to file certain medical insurance claims, even with some pre-existing conditions. While these are the major amendments, other important laws have refined the original piece of legislation.

Commercial Law – Trademark Infringement on Google AdWords

Whenever a business successfully builds a positive reputation in the marketplace and establishes a solid client base, there is always the potential for trademark infringement to become a problem. Competitors may attempt to use names, phrases, designs and colour schemes which are similar to your own in order to lure away your customers by causing them to mistakenly associate your positive reputation with the product or service which they are providing.

This is particularly the case in the online world, where branding is extremely important. Most people find what they are looking for online by typing a search term into a search engine’s web page and then following the links to relevant websites which the search engine returns. But how does the law of trademark infringement apply to the sponsored links, such as Google AdWords?

What is Google AdWords

AdWords is a service which Google offers under which business can pay to “sponsor” a word. When this word is typed into Google, links to businesses which have sponsored that word appear prominently on the right hand side of the web page. So for example, an electrical goods company might sponsor the phrase “Cheap TV” and whenever someone searches for this phrase the company’s advert will appear at the right hand side of the page. The contentious issue here is that Google will allow businesses to sponsor AdWords which are also the brand names or trade marks of competitors.

What is the law?

In July 2010 the European Court of Justice issued guidance on the circumstances in which one company may use a trademark of another company as an ad-word when delivering its judgment in the case of Portakabin Limited and Portakabin BV v Primakabin BV.

In this case Primakabin and Portakabin were rivals which manufactured the same line of products (portable accommodation/storage units). Primakabin had purchased the ad-word “portakabin” from Google, together with common mis-spellings of this word. This meant that whenever anyone typed “portakabin” into Google, they would see an advert for Primakabin’s products at the top-right of the screen. Portakabin sued, claiming that Primakabin were infringing on its trademark.

What about Google’s liability for trademark infringement?

The European Court of Justice decided that in cases where one company purchases an ad-word which is also a trademark of a competitor, there is not a trademark infringement as long as the advert makes it clear that there is no commercial connection between the company placing the advert and the company which owns the trademark. The issue which any court must consider is whether there is a likelihood that anyone who saw the advert after typing in a search term would be confused as to the origin of the goods or services which are advertised

The case also clarified that it is possible for a company to infringe on its competitors intellectual property rights by purchasing and using AdWords which are mis-spellings of the competitor’s trademark. In these cases the advertiser has the same duty to make it clear that it is not commercially connected with the company which owns the trademark.

What about Google’s liability for trademark infringement?

The issue of Google’s liability for trademark infringement by advertisers or service users who host content online has already been addressed by the European Court of Justice in the case of Google France v Louis Vuitton. The Court decided that Google is not liable for trademark infringements which are perpetrated by users of its services as long as it takes steps to remove any content which infringes on another party’s intellectual property rights as soon as is reasonably practicable after it has been informed of the infringement.

10 Essential iPad Apps for the Lawyer

The iPad promises to change the way lawyers practice the law. Here are 10 essential iPad apps that any lawyer should have.

  1. iWork for iPad – $30 or $10 for each of the three apps – includes a word processor (Pages), a spreadsheet application (Numbers), and a presentation application (Keynote). This suite of applications will enable you to create fairly sophisticated documents, although it’s probably a better for editing documents, rather than creating full-fledged contracts or agreements on the fly.
  2. Evernote – Free – A fantastic program that you can download for your computer, your iPhone/iTouch, and your iPad. This program allows you to save ideas, things you see on the web (on any of those devices), record notes, ideas, and voice memos, and to then share these things across platforms. So if you’re in court or in a meeting away from your computer, and you need to save a note, or a memo, it will synchronize with Evernote on your computer as well.
  3. Aji Annotator – $4.99 – Many legal documents come in PDF format. Aji Annotate lets you mark-up, annotate, and add notes to PDF documents, which you can then save and re-share with other people/lawyers.
  4. DocuSign – Varies – Until DocuSign comes up with a native application for its electronic signature service, you’ll have to have internet connectivity and the ability to reach the DocuSign website, which the company says is fully compatible with the new iPad.
  5. Air Sharing – Lite ($2.99) or Pro Version ($9.99) – Allows you to move files to your iPad (from your desktop) or to your iPhone or iTouch with ease. The early version for the iPad is getting reports of being buggy. The iPhone version which I’ve used works quite well.
  6. Instapaper – $4.99 – Works like a charm on the iPhone, and will be even better on the iPad. This app allows you to “bookmark” various webpages, which you then synch with your iPad. Allows for off-line browsing. Slightly duplicative of Evernote, although Instapaper does this one thing really well, whereas Evernote has a broader range of capabilities.
  7. DropBox – Free – DropBox allows you to share files via the “cloud” with multiple users on multiple different platforms. Obviously, highly confidential material needs to be treated with more care, and so this may not be appropriate for all documents you use. But for commonly used forms, standard agreements, standard documents, this is a good solution.
  8. Desktop Connect – $11.99 – Desktop Connection allows you to use your iPad to interact with your desktop or laptop that you left back at your office. You need to have VNC or RDP installed on the desktop/laptop so that the iPad can see the screen. Also, the quality of the connection will govern how useful this application is. In other words, the worse the connection, the less useful this application will be in allowing you to interact with your office computer.
  9. Dragon Dictation – Free – Dragon, the world’s best transcription software developer – has brought Dragon Dictation to the iPad. And it’s free! Dictate memos to yourself. Share them with yourself later at the office.
  10. Memeo connect Reader – Free – If you use Google Docs as the home for some or all of your Word and Excel documents, then the problem becomes accessing those documents when you’re not connected to the Internet. Memeo Connect Reader allows you to download those files so that you can work with them on your iPad.

With these 10 essential apps for lawyers, you’ll be well on your way to using the iPad as more than a toy, and as a genuine tool to help you practice law more effectively.

Getting a Trademark – Do You Always Have to Register?

Unregistered Trademarks and Passing Off

Many businesses fail to register their trademarks, either due to an oversight, or on cost grounds. However, even if you have not registered your trade mark you may still be able to take action against another party who uses your mark without your permission by means of the common law of passing off. Passing Off is not governed by any statute but has developed through case law over many years.

Passing off can occur by somebody adopting the same or similar trademark as yours, by adopting the same or similar packaging or appearance as that of your product, or by implying to the public that their goods or services are in some way connected with yours when they are not.

In order to bring a claim for passing off several things must be proved, namely:

– that the goods or services sold under your trade mark must have acquired goodwill or a reputation in the market;

– that there has been a misrepresentation by the other party (whether or not intentional) leading, or likely to lead, the public to believe that its goods or services are actually yours; and

– that you have suffered, or are likely to suffer, some damage as a result of the false belief caused by the other party’s misrepresentation. This usually means establishing actual or likely financial loss, and could include loss of profit in an existing market, loss of reputation or loss of opportunity to expand.

Passing off can only protect trade marks that are actually being used and have acquired a reputation. Due to the things that must be proved in order to establish the claim, it is often very difficult, and as a result, expensive to prove a passing off action. Passing off, if established, can be the subject of injunctions awarded by the courts and the party guilty of passing off can be ordered to pay damages and costs. It is much easier and cheaper to bring infringement proceedings if the trademark has been registered. Trademark registration will also provide broader protection, enabling you to take action in many circumstances that are not covered by passing off.

If you suspect that a competitor is passing off their products or services as yours, it is important that you seek advice immediately. The longer you delay, the more difficult it can be to remedy. But the best way for a business to protect itself is to ensure that all their trademarks have been registered.

Canada Immigrant Investor Program

Canada Immigrant Investor Program – one of the fastest method to migrate to Canada especially for investors – has been established by the Government of Canada in 1986 to attract experienced business people and investors whom are able to invest CAD $800,000 into Canada’s economy over a 5-year period (interest-free) and interested to settle in Canada except the province of Quebec.

The applicant requires to provide proof of minimum two years of business management experience within the previous five years, minimum net worth of CAD $1,600,000 (legally obtained. Ex. properties, bank accounts, investments, stocks, bonds etc.), make and investment of CAD $800,000 (interest-free) which can be financed by an approved financial institution approved by the government of Canada and meet certain health and security requirements.

In return, the approved applicant and his/her family (dependents) will obtain permanent resident status upon arrival in Canada and can live, work, study, and conduct business in Canada and also can enter and leave Canada freely and of course applying for Canadian citizenship after minimum three years after landing in Canada.

Also, for those whom wants migrate to Canada and live in Quebec province, they have to apply through Quebec Immigrant Investor Program; the program have slightly different requirements. You still need to have at least two years management experience plus invest $800,000 and provide documents proofing net worth of CAD $1,600,000 (legally obtained) and meet certain health and security requirements.

In general both Canada Immigrant Investor Program and Quebec Immigrant Investor Program are among the fastest method to migrate to beautiful Canada.

When You Need an Immigration Attorney

United States immigration law is a complex field requiring the complete understanding of regulations and laws from multiple government agencies. With those laws and regulations being federal in nature, U.S. immigration attorneys handle cases in all 50 states and represent clients before federal agencies and circuit courts. Persons with immigration related issues of any kind, whether personal or business, require competent counsel from an experienced attorney who specializes in immigration law to help ensure successful results.

Immigration attorneys assist individuals with such immigration issues as applications for work visas, marriage and fiance visas, family petitions, investor visas, deportation defense, asylum, citizenship, motions to reopen, appeals, and any other issue that involve immigration both directly and indirectly. The immigration attorney is able to assess each individual situation with the knowledge of all applicable laws and resources for available options to help resolve the issue or prepare an appeal.

Businesses benefit from representation of an expert immigration attorney when trying to establish a U.S. subsidiary or affiliate. Legal representation is strongly recommended when transferring employees to the U.S. to expedite work visas or legal permanent residence status. It is also recommended before investing in U.S. companies to protect the business interests.

Immigration law is too complex to trust to an inexperienced attorney, with errors or omissions having costly and potentially irreparable consequences. For competent representation, be sure that your immigration attorney is a member of the American Immigration Lawyers Association (AILA). Ask about similar cases to yours that the attorney has successfully represented so you will know that your attorney has the experience needed to offer you the very best available counsel.

Basics of Information Security

Accessing information stored in a computer ordinarily will implicate the owner’s reasonable expectation of privacy in the information. See United States v. Barth, 26 F. Supp. 2d 929, 936-37 (W.D. Tex. 1998) (finding reasonable expectation of privacy in files stored on hard drive of personal computer) The below are a few examples to insure your private information remains private.

1. Encrypt the file/folder; Have a passphrase, do NOT use a word due to software that can do dictionary attacks in multiple languages, but you must utilize a passphrase with numbers and characters. DO NOT write it down. If you are a corporation, remember, industrial espionage is rampant. Ex-KGB, and other out of work intelligence officers make a living applying their trade to the highest bidder these days. I prefer PGP, or Blowfish encryption.

2. Use a wiping utility, CyberScrub, Evidence-Eliminator, etc. that wipes the cache area of your computer; this is where passwords are sometimes stored, and the software also has features that allow you to destroy web browsing history, photographs, etc.

3. Trust your computer to no one. Software and hardware devices cost as little as $30 and will record each character you type and e-mail it to the person who wants to know your passphrase, bank account info, etc. Of course, do NOT open e-mail you do not know who it is from since their is spyware you can be e-mailed, and it will install once opened.

4. If you want to put the icing on the computer security cake, use a proxy that does not keep logs of their users activity, and has a rotating IP which makes hacking your computer next to impossible.

Why Are There So Many Car Accidents Happening on Today’s Roads?

The country has been experiencing a wave of vehicle accidents on its busy roadways. Car accident are not something anyone wants to have happen. Besides potential injuries, there are serious accident costs to repair your vehicle and then there will be the issue of driving in the future. Your insurance rates are surely to go up if you are found to be at fault. Why are so many car accidents happening? There are many reasons and some suggestions to avoid them:

1. There are more drivers on the roads than ever before. The country is a growing and the freeways and roads have never been busier.

2. More people are spending more time on the roads. There are just simply more drivers, driving for longer periods of time.

3. To avoid traffic drivers could check with Sigalert but very few do.

4. Busy area drivers are distracted while on the road. Police report that the main cause of accidents is drivers being distracted while on the roads. In interviewing several experienced Highway Patrol officers they said in 2011 there were increased incidents of car accidents from cell phone usage, texting, and eating food or consuming a beverage instead of focusing on the road.

5. One car crash happened when two drivers, neither of which was paying attention, were both distracted. One was looking at the ocean and the other was texting.

6. This country seems to be home to fast drivers. There were many that have been hurt in car accidents as a result of speeding. On a good day, the average speeds on freeway around the country can exceed 85-90 MPH. That’s more than 20% above the legal speed limit for driving. We know from speaking with motorcycle accident lawyers that many of the motorcycle accidents involve speeding. The chances for a fatality increase significantly if there is speeding involved in an accident.

7. The country has many distractions. One of the worst for drivers can be weather. The chances that you will have more blind spots from the brightness of the sun’s rays or from too much rain or snow has the potential to contribute to a car crash.

The best suggestions for drivers throughout the beautiful country is take great care while on the highways and roads. Don’t be distracted, don’t speed, and prepare for traffic and lots of other drivers being out there while on the roadways.

5 Actions To Take Right Now When Planning for Divorce

When you experience the unexpected loss of a marriage or are thinking about ending a marriage, it can feel like all of a sudden you’ve been blindsided and the rug has been pulled out from under your feet. At the same time, it can feel overwhelming and scary if you don’t know where to look for answers to the steady stream of questions whirling around in your mind.

You can, however, face and overcome your fears by taking these 5 steps right now:

1. Make your mental and emotional health your number one priority. It is essential that you see an excellent mental health professional. If you don’t have someone in mind, you simply have to take matters into your own hands and commit yourself to finding the best of the best. You deserve it!

I know that the lack of a clear path can be overwhelming, especially when you have immediate pressing concerns, like taking care of your children and going to work each day. I urge you to make this a top priority. It’s like when you’re in an airplane and the flight attendants tell you in case of an emergency to place the oxygen mask over yourself first before tending to your children. It’s extremely difficult (not to mention stressful!) to tend to others when you are not in a good place emotionally.

2. Gather information. Knowledge is power. Read anything you can about divorce and the emotional process that you’re going through. If anything, you will most likely feel better when you can validate what you’re feeling.

One book that I often recommend to clients is “Crazy Time” by Abigail Trafford. It describes the divorce process and walks you through the stages of grief. There are also many books on talking to children about divorce and separation.

You should also make sure you have a really good certified financial planner, tax advisor, and if necessary, a tax and estate planning attorney and any others who may be needed. You can obtain references from your attorney, trusted friends, colleagues and family.

3. Make a Plan. Make a list of what is most important to you. Protecting your children? Financial independence? Both? What else? Write down what goals would be ideal for you to achieve. Then, make a list of the resources you will need to consult to get additional information.

4. Gather documentation regarding your finances. You should immediately gather as much information as possible to get a complete understanding of your financial circumstances, including your income and expenses.

Ideally, you should obtain for at least the past 6 months the following: bank account statements, statements concerning your retirement accounts (IRA, 401k, pensions, annuities), stocks and brokerage account statements, deeds and mortgage documents, car insurance and loan documents, paystubs, bonus and commission statements, federal and state income tax returns for at least the last 3 years, credit card statements and loan documentation, medical insurance and life insurance documentation, business records and ledgers, list of monthly expenses for utilities and specific household expenses in budget format (such as Excel spreadsheet).

5. Get good solid legal advice. Any attorney you consult should practice exclusively in family and matrimonial matters. Make sure the attorney explains to you the different processes by which you can get divorced, traditional litigation, mediation, collaborative divorce, arbitration. Before you meet with an attorney, you should view his or her website and research how each divorce process works so that you can better decide which feels right for you.

You will now be on your way to creating a new life for yourself and your children by making informed choices that will enable you to achieve your most valuable goals for the future.

If you have any questions or wish to schedule a consultation, please call my office and I will look forward to helping you.

1 9 10 11 12