0.1 I need a lawyer. Can you represent me? Can you recommend a lawyer?
A: In short, no. I may, however, be able to refer you to another attorney and you may also be able to find help via one of the many legal directories on the Internet, such as FindLaw or Martindale-Hubbell. For specifically gay or gay-friendly lawyers, you may contact one of the following organizations:
0.2 What kinds of questions will you answer? I am unclear as to whether you will attempt to take on an issue unrelated to sexuality. I have a consumer related problem and was wondering if you could give it a go.
A: Dear Consumer: This section is certainly not limited to questions related to sexuality. As you can see, I've been getting questions on issues such as immigration, criminal procedure, and estate planning. The focus is on legal questions that affect Apollonetwork men and couples, our rights and our responsibilities. But I've also emphasized that this is an evolving forum, so ask away.
0.3 How will you answer my question? Recently I "asked" a question for "feedback". I know you guys are very busy helping so many people but when my answer comes will it be sent to me at my AOL SCREEN/NAME or will it appear in the Apollo Page? Thanking you in advance for your help and kindness.
A: Dear Wondering: In general, I will post answers to questions here on the Apollonetwork site so other Apollo Men can become informed about their legal rights from the answer. I edit out some information that might identify the writer to avoid someone being publicly embarrassed. Occasionally, someone needs a referral to an attorney and, to the extent I can help them, I may respond directly.
Also, be sure to check the Previous Questions. After I answer questions on this page, I move them periodically to that page, where they are arranged by subject.
0.4 Can I be blocked from Apollonetwork? Recently, I entered a 'Forum' discussion and apparently upset a few wimps who couldn't handle the controversy! They reported me to Ron and subsequently, I was blocked from viewing the 'Hot Bodies' and the 'Forum' areas! In the meantime, I had been writing to Ron, to try to reverse his decision, but he ignored me, of course! Then, comes Hector, to the rescue, who accuses me of harassing and insulting Ron! He suggested that I go elsewhere on the net for entertainment! Fine! Wimps, are a dime a dozen, everywhere! Which raises a few questions:
1. If the 'Forum' isn't open to any and every member, why should it be allowed to exist and why should they be allowed to call it a 'Forum?' I have every right to include myself into any 'open' Forum, when my message if one of education and awareness, for the other participants! "If they can't stand the heat, stay the hell out of the kitchen!"
2. What constitutes acceptance into the 'Forum' and why should the 'Old Ladies Sewing Circle,' be allowed to make that decision? They fear anyone who may expose them, for the wimps they are and that's what I call 'plastic dummies,' as in empty-headed! Otherwise, why would they not welcome some controversy?
3. Doesn't their action, constitute Discrimination!
So, you may, or may not find it worthy of comment, but I would like to hear the answers to my questions! That should prove hilarious! Do I dare hope...?
A:Yes, I do find your question worthy of comment. 1. The forum is open to every member. Your actions caused your membership to be pulled, thus you are a non-member and the forum is not open to non-members. You have only those rights granted to you as a member of this site.
2. This is Ron's site. Ron sets the rules for the use of the forums based on feedback from the majority, and he is the ultimate arbiter. In forums like this, the majority rules and, apparently, the majority had heard enough of your opinions.
3. Discrimination? Yes, it is a form of discrimination. However, private parties, such as Ron, are allowed to restrict speech in the US. The Constitutional right to free speech only places restrictions on the government.
0.5 How can I locate a gay-friendly lawyer? My partner and I reside in Chattanooga, TN (not the most "family" friendly) and we are searching for a gay-friendly lawyer to draw-up wills and property documents to protect our estate and to be sure the survivor is provided for. Do you have any thoughts or suggestions on locating a lawyer who will set-aside any personal opinions and assist in drawing up the necessary documents?
A: First, look for listings in your local or regional gay and lesbian paper or magazine. Many gay or gay-friendly attorneys now advertise. Also, check with any gay and lesbian service organizations or community centers in your area. Failing that, how about calling your local gay church and asking if they have any members who are lawyers?
I searched Martindale-Hubbell's online site, http://www.martindale.com, to see if I could find someone but there was no one specifically listed in Tennessee. Many lawyers in the estate planning area these days are pretty savvy about same-sex couples. I'd call some of them in your telephone directory and see if they'd be comfortable handling your needs. If they're not, then you don't need to give them your business.
Finally, if you are uncomfortable with speaking to a local attorney, you could always go to Nashville or Memphis. So much estate planning work can be done over the telephone or via the Internet that you'd only have to make a couple of trips - one for an initial interview and one to sign everything.
0.6 How do I bring a complaint against my attorney? I'm a gay person, Mid Eastern, Monk with a Christian monastery, living in the states on a religious visa R-1.In case you don't know about R-1 visa, it's a 3 years visa, can be extended for two more total of 5 years, yet if your order still want you to be with them, then after the 2nd year they'll apply for your green card. And that's what they did after the 2nd year, hired an attorney who was recommended by a gay immigration attorney.
A whole year of bad communication on his side, I sent him e-mails, letters, and called him many times, he didn't return my calls (I have records with all of that) during that time I was talking to the attorney that recommended him, he told me not to fire him and wait, maybe I have a case pending, as I am ignorant in all of that, I listened to him.
The year passed and I realized that the attorney I hired didn't file at all, during that time, my visa expired and I was out of status. Came to find that in America, no attorney wants to sue another attorney unless there a proof of $100.000 damage.
My life is ruined, I was taken in hand cuffs at the immigration, humiliated, I had to hire another immigration attorney for 3000 dollars, just to get me through the hearing of deportation. All the ID's I have now are expired including my passport which was taken by the immigration. Every time I write an organization of human rights, they get back to me with a list of attorneys. So to make this story short, do you think that I can take him to the court without an attorney, because I don't need one, I have enough proof and witnesses to sue him, I'll face him in the court. Can I do that?
A: I'm sorry for your bad experience with an apparently incompetent attorney. The number one complaint about lawyers is that they don't return telephone calls in a timely manner. Rather than bring a malpractice complaint, I would file a complaint with the licensing agency for the state in which this attorney is licensed. Each US state has some disciplinary procedure for attorneys and you don't need an attorney to file such a complaint. The complaint will be investigated and the consequences for the attorney can be quite severe - anything from a fine and a public reprimand to loss of his legal license. In some cases, they may even award you damages.
The reason I suggest this is because you don't need to spend the next few years of your life suing an attorney. You need to focus on what your real goal is - returning, if possible, to the monastery in the US. Many of the immigration rights organizations and human rights organizations you've contacted have lists of attorneys who will take on a case such as yours for free or at a substantially reduced cost. I'd also check with the monastery to see if they can help you and with any national or international organizations associated with your religion to see if they have similar assistance programs.
1.1 What happens if I die without a will? An older friend of mine died without a will leaving his younger lover penniless. The man's family came in, took the house, and the lover was on the street. The house was not all that great, but I'm sure the guy would have preferred for his lover to have it. We all know we need a will to protect our partners, but maybe most people these days (gay and straight) worry about tying themselves into a contact that could survive their relationship. What is a fair as well as safe way to make contracts that will assure our wishes are carried out after we are gone OR if we change our minds/partners before we die?
A: The situation you describe dramatically points out how little legal protection gay couples have in the US. With the exception of Vermont and, to a lesser extent, California, unmarried couples, gay or straight, have to rely on estate planning and legal documents to protect their loved ones. Since it isn't a simple topic, I'll spend the next couple of articles writing about the kinds of documents that every gay man should have, whether partnered or single.
Let me leave you with a short answer, however. At a minimum, every gay man should have an up-to-date power of attorney over financial affairs, medical power of attorney, physician's directive, and will. If you don't decide and record your wishes in these matters, the state you live (or die) in will have to do so, and you may not like the choices that are made.
One other thing - none of these documents is written in stone and you can modify or revoke any of them at any time by following some simple legal procedures that I'll cover in an upcoming article.
1.2 Is a handwritten will valid? Can I use a handwritten will? If yes, what are the required items that must be in the will and do I need a witness to the will.
A: This is one of those "it depends" type questions. In the US, wills are entirely defined by state laws and those laws can vary from state to state, so I'll give you a general idea but then refer you to a lawyer in your own state.
Let me start with the basics. A will is a document (called an "instrument") by which a person (the "testator") who is competent (that is, of sound mind and requisite age) makes a disposition of his or her property (the "estate") to take effect at his or her death and which can be revoked by the testator at any time during his or her lifetime. It doesn't have to dispose of property, however. It can simply name another person to manage the disposition of the estate (an "executor"), or describe how property will not be disposed, or even revoke another will. The best written wills will usually do all of these things.
If a will is printed, it must be signed by the testator, or by another person in the presence of and at the direction of the testator, and it must be witnessed, usually be two or three competent persons. A handwritten will, if correctly signed and witnessed, can also be a valid will if it has all the other requirements set out above. However, a handwritten will doesn't have to be witnessed, if it is in the testator's handwriting and signed by the testator. This kind of will is called a "holographic" will and is valid in about 25 US states.
So the short answer is, yes, you can use a handwritten will if it follows the requirements for your particular state.
If you have a simple estate and simple last wishes, a holographic will may suffice. However, for gays and lesbians, I don't recommend using a holographic will or, for that matter, will software or a will kit.
Because so many family members may disapprove of a gay relationship, a will is probably more likely to be challenged and if the will is set aside, then the court has to sort it all out and then state probate laws will be used to determine who gets what. And this doesn't include just the financial issues - it also includes matters like who get's to bury you and where. I don't know about you, but I sure don't want my Baptist brother to decide where to bury my Jewish butt.
A will drafted by a competent attorney is more likely to survive a will challenge than one that you do yourself. Ask yourself this question - "is it worth taking the chance that my wishes, financial and otherwise, will not be carried out simply to save a few hundred dollars?" Besides, if the attorney screws it up, your heirs can always sue for malpractice. ;-)
1.3 I have a living trust. Do I need a will? My partner of 25 years and I have a will and maintain a living trust. I guess that is still a little confusing for me in that it seems that the living trust supercedes the will. So, is there a point in having both, or would the living trust suffice for adequate protection of the estate? Maybe you can help clear up the confusion for many on this.
A:. I'm glad to see you have both a living trust and a will. In my opinion, that's the best planning for domestic partners. The living trust is designed to keep as much of your estate as possible out of the probate court, thus minimizing probate fees which can be quite high in some states, particularly in the northeast. It also helps ensure that the estate gets distributed according to your wishes and, because the trust can do things like send birthday checks to the nieces and nephews, it helps minimize the chances that a family member would be able to interfere with the distribution of your estate. What you don't want to do, however, is use a living trust as a substitute for a will.
In your situation, the will acts as a "catch-all" for anything that you forgot to include in the living trust. Without the will, you would be dying intestate for anything not covered by the living trust and the distribution of that portion of your estate would be decided by the probate court under that state's rules. In addition, in a will you can also appoint an executor, exclude particular individuals from any distribution, and appoint someone to handle your remains.
Now, there is a down side to living trusts. Many companies and financial advisors have been offering to set these up for a set fee. Often times, they will claim to have an attorney handle these things when, in fact, all the attorney does is "sign off" on the documents. Often times, the individuals providing these services are basically salesmen who collect some information and fill out some standard forms, as if one size could fit all. Later, you find out that the trust has not been set up correctly or that important papers, such as deeds, have not been correctly transferred and filed.
Many of these individuals and companies have been prosecuted for unauthorized practice of law and the attorneys who are involved have been disbarred. But still, people continue to fall for these services. These crackdowns aren't down to protect the legal profession but to protect the legal consumer. You wouldn't ask your chiropractor to practice major surgery to save a few bucks - don't ask your financial advisor to practice law. Be sure to have an attorney of your choice review these documents.
1.4 Can my lover's family challenge his will? I am currently in a 15 year relationship with a man that I love more than life itself, he is 70 and I am 39. We share everything from our house, cars and checking/saving accounts. They are all in both of our names. He was married and is divorced and has 2 daughters my age. We do have a will and everything goes to me if he passed away. He has left some things to his daughter which is fine with me.
My question is: after he passes away can they sue for everything because they are next of kin even though the will says I get the house, cars, saving and checking account. He has left them some money and family stuff.
A: Anyone who believes they have a right to the estate can challenge the will. This is called a will contest. That's why it's important to have a will drawn up by a licensed attorney. When a will contest happens, the most likely argument they will make is that the person was not competent or was unduly influenced by another when they executed the will. To prevail on this, they have to show evidence and courts are not as likely these days to throw out a will simply because the testator left some or even all of his estate to his gay partner.
Does your partner have a good relationship with his daughters? Do they know about you and do they know the nature of your relationship? If so, he might consider writing a letter to them now telling them how he intends to distribute his estate. That way, if they're going to be mad about the will, they can do so now rather than after he's gone. Also, such a letter can help establish his competency if they decide to challenge things later. But be sure that he avoids writing about the sexual nature of the relationship or goes into great detail here, since that could be used in a will contest in an attempt to prejudice the court.
A couple of other things to keep in mind: be sure the signed original of the will is kept in a safe place where you or he can get to it, such as a safe deposit box in both your names. And be sure to have your attorney review your wills periodically, particularly if you buy and sell property that may be subject to the will.
1.5 Should I use a boiler plate will? I've been trying to update my will from a standard WA state boiler-plate format to a CA state. Have not been able to get my hands on a copy of the standard boiler-plate. I surf up a storm but have not found the right WWW site as of yet, our local library was no help either. Got any suggestions or sites to surf to?
A: A lot of bookstores and some business supply stores will have books on wills for your state. I don't think nolo.com has anything more than general information on their web site and you probably won't find much else out there because of laws against unauthorized practice of law. I don't recommend these boiler-plate will kits or software because they are often out-of-date or only applicable to the simplest estates. If you shop around, you should be able to find an attorney who will prepare a simple will, powers of attorney, disposition of remains, declaration of guardianship and physicians directive for a reasonable, flat fee. If you're poverty-stricken, most local bar associations have lists of attorneys who will do this for free.
I'll say this many times in this column - do-it-yourself law is like do-it-yourself surgery; you'll save a lot of money but the outcome may not be what you expect or want.
1.6 My partner can't get insurance. How can he protect me if he dies? I have been living with my partner for the last 11 years. I am 31 and his is 51. He currently takes heart medication and lots of other medication for other problems. He is also a smoker. We have tried many times to get him medical insurance so that if something were to happen to him I would get the house? No one will approve him. Currently, we both pay the mortgage, although it is in his name only. Is there some other way that he could leave the house to me? The only kind of insurance he could get was accidental death insurance for 1/3 of what the house is worth which will not help us (take care of the burial and house) if he were to pass from natural causes. Thank you for your time.
A: I assume you're talking about life insurance, which pays a beneficiary when the insured dies, and not medical insurance, which covers medical needs and expenses. Either one is probably tough to get for your partner because of his health and because of his smoking. Insurance companies only want to insure health people, although some will insure almost anyone at a correspondingly high premium. You and your partner may be better off putting an amount equal to a monthly premium into a interest-bearing savings account that would be payable (to you) on death (called a "POD" account).
There's a couple things you should do to protect yourself, though. Since you've been paying part of the mortgage, see if he'd be willing to convert the deed to a joint ownership with right of survivorship. The way to look at this financially is to figure out how much of the mortgage payment you've paid goes to the principal in the house, then have your partner credit this to your equity. You'll need to discuss this with a real estate attorney since you'll have to make changes on the deed, and they're may be valid reasons, such as judgment creditors or liens, that would make this unrealistic. But if you do go this route, when you or your partner dies, the ownership of the house passes to the remaining partner without having to go to probate court. If both of you have good credit, this might be a good time to refinance the house and get your name on both the deed and the mortgage, since the interest rates remain pretty low.
Another option is for your partner to write a will that leaves you the house and the contents. You'll need to see an estate attorney for this and he or she should also prepare the other documents I've mentioned above. In my next article, I'm going to be discussing joint ownership, wills and probate, so be sure to keep checking back.
In either case, assuming you outlive your partner, you'll take the house subject to any outstanding mortgage loan, so you'll have to keep up the mortgage payments, if the loan is in both names, or sell the house and pay off the loan, if the loan remains in his name. But at least you'll have some equity you can use to buy something else. Good luck.
1.7 My partner and I don't live together. Where should we keep our will? In one of your recent answers, you wrote: A couple of other things to keep in mind: be sure the signed original of the will is kept in a safe place where you or he can get to it, such as a safe deposit box in both your names.
Like many others, my partner and I do not live in the same state, unfortunately, and it is much easier for me to visit him than for him to come to visit me. He has sent me both his original Will and his original Living Trust, and I keep them at home with me. I received these documents in sealed condition, and they have remained, and will remain, sealed until the time when they need to be opened. I do know what they contain however, for I have seen a copy of them. They are in my favor.
When he sent me those documents, he did say that his attorney has advised that they be kept in a safe deposit box in a bank, and that both of us should have access to them. This advice is the same as yours. But because of practical considerations, the advice cannot be carried out. Can you please tell me if, by keeping these documents at home, am I putting things in jeopardy and subjecting myself to challenge by others when the time comes for me to act upon the Will and the Trust? Have you any suggestions as to what I can do to safeguard the force of these documents and not subject them or myself to challenge later even though my partner and I live apart, and that only I have ready access to the originals of these documents? I would appreciate very much any advice that you can give. Many thanks!
A: Well, the reason for keeping the originals safe is because an original will is presumed to be valid and in force whereas with a copy, you have to prove to the court that there is no later will and the will hasn't been revoked. It's often the case that only a copy can be found but it saves you a step in probate if you can produce the original.
The main reason for keeping them in a jointly-held safe deposit box is simply that the remaining partner needs to have access to the original documents if the other partner is deceased. This becomes difficult if you don't have the right to open the box since you'd have to go to the probate court to get a court order that would allow you to open the box. This step is not uncommon, just inconvenient.
I also don't want to give the impression that you absolutely must keep the documents for both partners in the same location. The important thing is having access and there is no reason you can't have access to his box and vice versa. Keep your partner's original documents in your safe deposit box and keep yours in his safe deposit box. You could also keep the originals at your home in a fire-proof safe, but I just feel a bank safe deposit box is a little easier to deal with. Be sure to keep copies at your house, and be sure to give copies of things like a living will, medical power of attorney, or physicians directive to your primary care physician.
1.8 What are my legal responsibilities to my partner? Recently my partner had to undergo major surgery and the doctor requested a family member be present during the operation. He had his daughter fly in from New Mexico for the operation. Prior to the operation his daughter made him make her his health advocate and give her power of attorney despite his wanting me to be his health advocate and power of attorney since we are partners for life. The operation did not go well and my partner nearly died. He is now in a nursing home for physical therapy and awaiting another operation. His daughter went back home and has left me with all of the responsibilities of his financial obligations. Although he is on Medicare and Medicaid, I have to take care of his rent, heating, cable, insurance, etc. I feel that since his daughter signed the health advocate and power of attorney papers and is in this agreement with her father she is fully responsible for his care and financial obligations while he is in the nursing home and under a physicians care.
Can you tell me what my responsibilities are in this matter and whether I should do anything for my partner since his daughter and he signed into this agreement. She has been a total bitch towards me in this matter like it was my fault that he had to have surgery and almost died. She plans to move him close to her when he is able to go back to his apartment and is making sure he has nothing more to do with me.
Please help me in this matter. I am about to go nuts worrying about him and this matter. She has no rights to tell him what to do if he has his right mind, and he does. He just can't go home till the operation and rehab of this up coming operation.
A: I'm sorry you've had to go through all of this. It's bad enough having to deal with a loved one's illness without also having to deal with bad family ties. Unfortunately, it's often the case these conflicts arise in gay relationships where family members don't support, or worse, are hostile to the relationship. These kinds of problems, while they can't be completely eliminated, can often be reduced by careful estate planning.
Ordinarily, you have no legal responsibility toward your partner since you are not legally married. There are two ways this could change: either by a contract between you and your partner, or by your being appointed guardian over your partner. The first method, by contract, is what estate planning for gay couples involves. The kinds of agreements you need now are medical and financial powers of attorney and hospital visitation agreements. Take a look a my prior articles for more information on these agreements.
The decision about who to have manage his affairs belongs to your partner - not his daughter and not you. In particular, he should be making the decisions about his medical treatment and the medical power of attorney and financial powers should only come into effect when he is not able to make these decisions. Just because he asked his daughter to sign these documents doesn't mean he can't change his mind later. He can change that decision at any time by revoking any existing power of attorney. If and when he decides to change these documents, in his case he should do this in writing, preferably with a new set of appointment documents that explicitly revoke the old ones.
I don't know why your partner appointed his daughter instead of you but he has had to deal with a lot of health emergencies, as have you, so neither he nor you may be making the best decisions right now. What does he want to do? Does he want to move closer to his daughter? Does he think you can handle the increased care he needs now? I can't answer these questions, only you and he can, and you need to talk about these things now. Once you've done so, you both should consult with an attorney to put into place the things you decide.
Good luck to both of you and please keep me updated.
1.9 Do joint property owners have to pay inheritance tax? If two names are on one deed, does that property go to the survivor without paying inheritance tax?
A: It can, depending upon your state's laws and if you own the property as joint tenants with right of survivorship. To have it pass this way, you need to make sure the deed has the proper language, which can vary slightly depending upon your state. Otherwise, ownership of the undivided half of the estate owned by the deceased must be determined according to the rules of probate, which means that the transfer is also subject to estate taxes (if any). It's worth the fee, which shouldn't be very much, to have a real estate attorney check this for you. The deed can be amended with the proper language if necessary.
1.10 Is there a way to avoid probate of a will? I live in the State of Washington.
A: Not that I'm aware of, although every state has different laws. The fact that you can't avoid probate, however, doesn't mean that you can't keep as much as possible out of the probate courts. For example, if you name your partner as the beneficiary of an insurance policy, the proceeds are not part of the estate and so are not subject to probate. Similarly, if you and your partner own your house as joint tenants with rights of survivorship, then the disposition of the house escapes probate. Take a look at the past articles I've written on estate planning, which I think is an essential process for gay couples -- at least, until we win the right to marry each other.
1.11 Do I have to pay debts of an estate from insurance benefits? My question deals with my aging father. He is 85 and I take care of all his needs, including paying his bills. He has two big bills to credit card companies. He is not using the cards anymore, just paying down the debt. He only has S.S. and a small pension. My question is -If and when he passes am I under legal obligation to pay any of these bills off? My mother has passed and he is the only person signed on the account. He will not have much money in his estate-I am the sole heir. Will I be legally bound to pay anything out of beneficiary funds that are given to me through insurance beneficiaries? I would assume as executor of the estate that I would pay these bills if there is any money left in checkbook and savings after funeral expenses. I have been told that I am under no obligation to pay debts out of money that is given to me through a beneficiary from an insurance policy?
A: When someone dies, their estate needs to be settled as part of the probate process. Any debts that person has, including any state and federal tax, have to be paid but only to the extent that there is money in the estate. However, the money paid to you as beneficiary of your father's insurance is yours and not part of the estate and you have no obligation to pay his debts from these proceeds.
One thing you should consider doing is taking your father into bankruptcy. You say he's not using the cards and, if he has no further need of credit and doesn't own much in the way of property, then the bad credit rating that would result certainly isn't going to hurt him. Since the bankruptcy would discharge your father's unsecured debt, it would preserve your father's current income and help you pay his bills. I would suggest you explore this with a bankruptcy attorney.
1.12 How do I leave an estate to a foreign citizen? This may be too hairy a question to address in your column so if it is just don't bother. If someone wanted to leave part or all of his estate to someone (maybe a lover, maybe anyone) who was a citizen of a foreign country and the heir lived there, would the money or items be transferable out of the US to that person? Would there be duty charges. I do not know how much money a citizen is allowed to take out of this country. In England, for example, you are limited. But do these limits apply to inheritances? Thank you for your time and help, and as I said if this question is too complicated or fraught with exceptions don't bother.
A: In general, in the US, you can leave your property to anyone you want. Clearly, some things are not transferable - mostly real estate - but I'm not aware of any limitations on who you can name as your heir in this country. The real problem, which you've already mentioned, is the transfer of that estate, which may be subject to taxation both in the US and in the foreign country. There is also a limitation on the amount of cash you can take out of the US - I don't know the exact amount but it doesn't limit the estate in any way, it simply limits how much you can transfer without having to declare the transfer.
As for property other than real estate, there may be duties and other taxes limiting the importation. Small, personal items of limited value are probably not subject to any importation duties, but this will depend upon the importing country's commerce laws. In the US, I'd check with the commerce department. Overseas, I'd check with the equivalent government agency.
The mechanics of the process are pretty straightforward. You simply name that person as the heir for all or part of your estate or you leave a specific gift to that person.
1.13 Can children go to court to challenge a will? Hi, I am (39) in a long term relationship with a man (71) and we been together for 16 yrs. We both have wills and his states that I get the house, cars, everything in the house. We are joint owners on all that. The only thing that gets split up is his equity from his job he had for over 30 years. It is to be divided in 4 ways 1/2 going to each of his 2 children's, brother and myself. My name is the beneficiary on his 401k and stock. (He still works)
My question is: I have read that children can go to court after their parents died and can get an automatic 2/3 of their fathers estate. Is this true? If so how can I protect myself from getting screwed. Also would it be beneficial for us to get married in the state of Vermont? Are there any other reasons why we should other than the commitment?
A: Let me deal with your last question first. Unless you live in Vermont and own property in Vermont, it would not provide you any legal protection to register under that state's civil union statute. However, there isn't really any down side and some judges may consider that status as one more reason to uphold your wills. Just remember that a Vermont civil union can only be dissolved in Vermont.
Now, as to your other question, children can contest a will. In fact, anyone who believes they have a right to an estate can contest a will when it is probated. That doesn't mean that they will succeed and, these days, most probate courts will tend to uphold a will unless the challenger can show that the testator (the decedent) was incompetent or under undue influence at the time the will was signed. The mere fact that someone is in a gay relationship is generally no longer sufficient.
That said, there are certain things that you and your partner should be sure to do to ward off such a challenge. First, no matter how much you love and idolize your partner, you should never put language in a will alluding to the sexual nature of the relationship. In some states, a judge could set aside the will based upon the "illegal" nature of the relationship. Instead, you may refer to "my friend", "my best friend," etc.
Second, be sure to have your wills and other documents checked by a competent estate planning attorney, and by competent, I mean someone who has worked with same sex couples before. There are some nuances that can affect the validity of a will and your garden variety attorney may not be aware of them. Ask around for somebody good and be prepared to pay a little more. Even if you draw up the will yourself, you should have it reviewed. This is not the time to pinch pennies.
Finally, be sure to use non-probate transfers to your advantage. These types of transfers stay outside of the probate court and are not considered part of your estate. Thus, they are rarely subject to successful challenge. You mentioned that you are the beneficiary on his 401k and stock; these items are transferred to you upon proof of your partner's death and they are not subject to the probate court since they are not even considered part of his estate. Other types of non-probate assets include insurance policies and bank accounts that are payable on death. You also mention the house being in both names; make sure the deed says that you and your partner are "joint owners with rights of survivorship." If this is the way the deed reads, then your partner's half of your home passes to you automatically on his death. The key is the "right of survivorship" - without this, your partner's undivided share of the house becomes part of his estate and must be decided by the probate court subject to the terms of the will. Be sure to have this checked by a real estate attorney who can fix this common error if necessary.
Take a look at some of my past articles and answers for more information on this.
1.14 How dangerous is it for a person on SSI to manage somebody else's money? I am 66 now and, as the result of an accident, my only income is SSI (Supplemental Security Income). Because I am receiving this income, I am limited on the amount of assets I can have and if the combined funds in all my accounts exceed $2,000 (even for 1 cent) at any time, I will lose full amount of SSI for that month. I'm not complaining - I'm comfortable enough, but it does restrict me financially.
I have a friend who went to Russia and worked there for couple of years. While he was there, he was arrested and recently sentenced to 10 years of hard labor for sex with boys. The earliest he can be released is in about 6 years, at which time he will be 64-65 years old. Though my friend had a fair salary, he did not spend and manage his money wisely. He keeps his funds in two financial institutions but, like everything else, they went down and currently amount to less than $50,000. He also owns an apartment which I have been instructed to sell. But he owes about $40,000 already now -- and further expenses for legal fees and for food, warm clothing and their delivery to the prison camp in Russia. I am afraid that by the time of his release not much money will be left in his coffers. And with the difficulties of finding job at his age he will eventually apply for Social Security payments too.
As I am the only person in the US he trusts, he gave me General Power of Attorney to conduct all his affairs and to manage those funds belonging to him. But in order to manage his assets, I must establish joint accounts in both of our names with his Social Security Number only. What worries me is how this will affect my eligibility for SSI income?
He also signed an affidavit bequeathing all his belongings to me. Taking into the consideration all those circumstances, his death prior to mine seems not that unlikely, though he is 9 years younger than me. In the case of my actual inheritance of whatever is left of his assets, how will that affect my standing with SSA? He sent me an affidavit. I do not think he has a will. Should something be done for this purpose? He does not have any close relatives: his parents died long ago, he has no siblings, he never married. He may have some cousins, but I know that he was never close with any one.
A: Yours is an interesting situation - that's why I've included most of the information you sent - but not that difficult to deal with. I don't think you're in any danger in your current situation since you are simply managing his funds on his behalf. The funds don't count as either income to you or as an asset of yours. Thus, they have no effect on the income / asset threshold used by the Social Security Administration to establish your eligibility for SSI.
However, if your friend dies and leaves you everything (assuming anything is left), the situation changes. Since the affidavit probably doesn't constitute a valid will, his assets (if any) would pass by the laws of intestacy in the state where the assets are located. Most likely, this would mean that the assets would go to the state, which is probably not what he intends. Your friend needs to execute a will naming you as the beneficiary. Unfortunately, this may cause you to exceed your asset ceiling. As I understand the eligibility requirements, you would need to "spend down" these assets in order to get back below the SSI limits.
I think the safest thing for you and your friend would be to have an attorney set up a trust with your friend as the beneficiary and you as the administrator. This would have two useful results. First, if anything happened to you, another administrator could be appointed and your friend's needs could continue to be taken care of. Second, if your friend died before you, you could be named in his will as the beneficiary and the trust could be set up to pay you a monthly amount that would not exceed your income limit. The corpus (the funds in the trust) would not be considered then to be your asset so you would not exceed your income limit.
You need to talk to an estate planning attorney in your area in order to set this up. The attorney should set up the trust on your friend's behalf and make sure your friend has a will that is consistent with this. Keep me posted; I'm interested to hear how your friend and you are doing.
1.15 If someone contests a will in probate court and their attorney withdraws, does it end their case? I read the answer to the question concerning the wills and the protest of the probate. I have a similar problem that I wonder about. If a will is filed for probate in court and then a half-niece files a protest in court by her lawyer and then her lawyer tells my lawyer 3 or 4 months later that he is pulling out of the case, does that mean that her protest papers that were filled by him are not any good or what happens to them? I just wonder if she will still protest the will or let it go since more than likely she would not pay him. She has been on probation from jail herself and is really trying to get something for nothing.
I would ask my lawyer but he really intimidates me and I feel as though I am always bothering him. He is not the kind of person who volunteers any information. I am from Texas in case that will help you on your answer. I do appreciate your help and am so pleased to find you in the Apollo newsletter. Thank you again.
A: Well, it's not a good sign for the half-niece's case when her lawyer withdraws from representing her. A lawyer will withdraw from a case for one of several reasons: the client has fired him, the client has asked the lawyer to take a position that the lawyer disagrees with or is legally unable to pursue, the lawyer has discovered a conflict of interest, the client is uncooperative or troublesome, or the client has refused to pay the bill. I'd guess the half-niece is refusing to pay the attorney, since this is the most common conflict with clients.
Nonetheless, an attorney can't just walk away from a case in court. In Texas, as elsewhere, once a lawyer has become attorney of record in a case (generally, by filing the case), he or she must ask the court's permission to withdraw from representation by filing a motion to withdraw. The attorney must show that the withdrawal won't harm the client's case before a judge will grant the motion to withdrawal. Once granted, the lawyer has no further responsibility to the client other than to return the client's files and to maintain client confidentiality.
You don't mention whether the court has allowed the half-niece's attorney to withdraw. If it has, her case doesn't go away, she will either find (or has already found) another attorney to take over the case, or she will have to proceed pro se, a legal term that simply means she's acting as her own attorney. (Just as an aside, you are not required to hire an attorney to represent you in court but you will certainly be at a disadvantage if you don't.) If she does proceed pro se, it would indicate to me that she's a problem client with a poor chance of winning a contest of a not-very-big estate.
As far as your own attorney, I will not disparage another member of the Texas bar, but he's your representative and you have a right to be informed. Don't let any attorney intimidate you, particularly if he's your attorney. If you don't feel like he's keeping you informed, tell him in writing you want regular reports on the case. On the other hand, be respectful of his time and, depending on your contract with him, expect to be billed for telephone and other consultations.
1.16 I have 3 traditional IRAs and a Sep-IRA. How can I take a distribution? I just turned 70 in January. Do I have to take a distribution from each IRA or can I take it from just one? It's confusing to read the directions. Thanks.
A: First of all, you'll have to wait a few more months - you have to be 70 and 1/2 before you can begin withdrawals. An IRA (Individual Retirement Account) is a tax-deferred savings plan. Any individual can set one up and contribute annually. You pay taxes only when you begin withdrawals from the account. A SEP-IRA (Simplified Employee Pension IRA) is a retirement plan for small businesses. They have a higher contribution limit but otherwise don't have any different rules than a standard IRA.
As far as withdrawals, it doesn't make any difference which fund you withdraw from first. Depending upon what you've invested them in, some funds may be performing better than others, so your only consideration should be which funds do you want to hold onto longer and which ones make sense to liquidate. You could also roll over all your accounts into a single IRA, which may make things a little simpler to manage. From a tax law point of view, however, it won't make any difference.
1.17 How valid is a self-composed will? My question concerns the validity of self-composed wills, the ramifications involved and the need for correct wordings. Thank you for volunteering your professional time and expertise to the members of apollonetwork. I am sending a small contribution to Ron this morning, in your name, as a gesture of appreciation.
The following is my situation: I am seventy years old and survive, miraculously, on a partial social security check once a month. This survival has, in large measure, been due to the fact that my brother, who is also gay, has paid for half of the house I inhabit with my partner of thirteen years. My partner is forty six and has an excellent job. His salary carries the major financial burden of this household. I contribute a major share of my social security check to that household. To compensate this exchange, I utilize my time and efforts in all areas that make this house run smoothly, i. e. cooking, cleaning, repair, outside maintenance, shopping etc. It has worked smoothly between us in this happy partnership.
My question concerns the reality that should I survive my brother in life (he has a considerable estate), I will receive the bulk of this worth, in excess of a million dollars. In the unlikely but not totally improbable scenario that my brother and I should both die at the same time, I would wish my partner to receive the entire amount of what would have been left to me. And in the event of his immediate demise, a provision which stipulates where this estate will be directed.
Is a hand written will, notarized and witnessed, valid documentation? How should it be worded? Who gets copies of it? Is there anything else I should be aware of so that no federal or state intrusions tap in to this value unnecessarily. Thank you so much for your time.
A: Thank you for your kind words and thanks for making a contribution. It will certainly help keep this great site going and I'm glad to be a part of it.
You are right to be concerned about a handwritten will. As I've written before, this kind of will, called "holographic", is valid in most states. However, your letter raises some significant estate problems and I urge you to have your will drawn up by a local attorney. The three questions you have to address are (1) what happens to your estate if you predecease your brother, (2) what happens if your brother predeceases you, and (3) what happens if you and your brother die simultaneously.
First, you need to address your estate should you die before your brother. You indicate you don't have much of an estate to leave him now, but there is the question of the house you and your partner live in. Who owns title? Is the house owned jointly by you and your brother? If so, is it with right of survivorship? If it is merely owned in joint tenancy with your brother, then your undivided half of the house would become part of your estate and would be passed on to your partner, assuming he is your heir. However, if it is a joint tenancy with rights of survivorship, then your half goes to the surviving tenant (your brother) and your partner would have no rights in the house. You need to resolve this ownership question to ensure that your partner will be able to continue to live in your home and have some equity in it after your gone.
If your brother lent you money to buy the house, then there is a question of a loan as well as title to the house that needs to be resolved. If you die first, how will the loan be paid off? Normally, it would come out of the proceeds of the estate, which might require an executor to sell your house. Is the loan secured by a mortgage on the house? If so, you and your partner should look into getting the mortgage and the house placed in both names. That way, your partner could keep the house after your death, assuming he kept up the mortgage. On the other hand, if your brother predeceases you the way the loan is handled depends upon whether you are his sole heir or one of several heirs. If you are one of several heirs, the balance owed by you on the loan becomes an asset of your brother's estate and would be deducted from your share of the estate. If you are the sole heir, it effectively goes away.
You will need to address these issues with your brother, since any changes will require his assistance in either modifying the title on the house, modifying the loan (if any), and modifying his will.
Second, you need to address what happens if you outlive your brother. If his will leaves everything to you, then you need to ensure that your will leaves your entire estate to your partner (if that's what you want). In addition, you will want to revise your will after your brother's death, since you may then have a sizeable estate and there will be considerable tax implications when you pass this on to your partner.
Third, most states have adopted the uniform survivorship statute. This statute deals with the situation you mention, where a person dies at the same time as that person's beneficiary. In these cases, the wills are read as if the two persons did not die simultaneously. So, for example, if your will left your entire estate to your partner and your brother's will left everything to you, your brother's will would be probated as if you outlived him and vice versa. This could get pretty complicated, particularly if you or your brother have living relatives, which is why I recommend that you don't rely on a handwritten, do-it-yourself will but, instead, have one professionally drafted by an estate planning attorney.
There are a lot of other questions an estate planning attorney needs to address with you and your brother. For example, are there any other family members, particularly yours or his children? If so, your wills need to address those family members, either by excluding them specifically or by leaving them something. A good estate planning attorney will review these and other issues with you before drafting your will. In your case, the peace of mind of such planning would be well worth the time and money spent.
1.18 Is there anything I can do that protects me financially but enables me to feel more committed to my current partner? One of my problems in the past is that I have always been too trusting. I'm 37 and have only had 2 long term relationships (one 7 years and another 5 years). Both men ranging from 10 to 20 years older then me and both of these relationship ended very badly for me financially, leaving me having to pay off high credit card bills. I always seem to get taken for a ride and it's left me with my guard up almost to the point of appearing selfish.
The problem is that I am currently in another long term, going on 5 years now with a man who is 10 years older then me. I'm very successful in my own business and over the years I have accumulated considerable savings and property, all of which I owned before I met my current partner.
He moved in with me and ever sense I have been the sole supporter, I'm OK with it to a point. He feels left out, some times upset that he does not own anything that we have. He has been upset ever since I refinanced the house and did not include his name on the property. He often say he feels like I'm holding out on him because I only give him $2,000 per month to spend and pay his child support. He compares that to what I have to spend and walks out of the room and will not talk to me sometimes all day because I said no to something he wanted. Is there anything I can do legally that will protect me financially and enable me to be more committed to the relationship, I feel that this stress is getting to be too much for me. But I want him to feel like he is much more then a roommate.
By the way, I said "no," when he asked me to enter into a civil union. I do not want to lose anything if he chooses to walk someday. I'm not going to get burned again. Any suggestions?
A: Well, I don't have much in the way of legal suggestions because I think you and he need to work out your relationship dynamics, including financial arrangements, before you attempt to work on your legal relationship. Money's a touchy subject for all couples and it's the number one reason couples fight, gay or straight. It's particularly difficult when there is a difference in what one partner makes because it can be used as a way to control someone.
While I can understand your point of view, I also can see how your reluctance may make him feel particularly insecure about his life with you. Although you are worried that you lose if he walks away from you, what will he have if it's you that chooses to walk away from him? After five years together, I think you and he owe it to each other to figure out where your relationship is going. Once you feel you can commit, you and he can work out an equitable legal arrangement, such as allowing him to acquire some "sweat equity" in your shared house in return for managing the household or doing repairs or whatever.
1.19 Is adopting a partner better than using a will? Is there any added benefit for one partner (76y/o) to adopt the other (45y/o) even if they both have wills, etc.? Which would be more beneficial regarding reducing tax burdens of an estate? You're a great asset to this wonderful community. Keep up the great work. Thank you very much.
A: I'm not sure there'd be any real benefit, particularly if you're simply trying to reduce tax burdens. I think you'd be better off setting up as much property ownership as possible using various mechanisms that completely avoid probate, such as setting up joint ownership with right of survivorship, placing other assets into a living trust, or naming each other as beneficiary in insurance policies. Take a look at some of my earlier columns (July 2002 and August 2002) on estate planning for some more information on ways you can avoid probate.
Although I don't recommend adult adoption for gay couples, others do. Law professor Joanna Grossman has another opinion at http://writ.news.findlaw.com/grossman/20010116.html.
1.20 What information should I gather for a living trust?I'm thinking of going to a lawyer for a living trust. How much detail must I have in order to get this done in one visit? I own a house, car, social security, annuity, furnishings, bonds and bank accounts. Are all these details enough? Thanks for the help.
A: I would prepare a list of all your assets, including account numbers and have this ready when you go. I'd also recommend that you call ahead to the lawyer's office, tell him or her that you've prepared such a list and ask if there's anything he or she also needs. One thing that comes to mind is to call any banks, investment firms and the like to ask them for any forms they may require, otherwise, your attorney will have to do this for you.
Whatever you do, be sure that the attorney you choose has experience in setting up these trusts, tax law and financial planning. And it will take at least two meetings with the attorney - one to gather the information and one in which he or she will review the forms with you and get signatures. If you're concerned about cost, be sure to discuss this up front and ask for some sort of flat fee or cap on fees. Unless you have a complicated estate, it shouldn't cost too much.
1.21 Should a will be updated after moving to another state? My partner and I made out a legal document on if anything ever happens to either one of us, than our assets would go to which one of us is surviving. We made that out in Colorado, we now live in Virginia, is this still a valid document? Thank you.
A: Any time you make a significant change in your life, such as moving to another state, buying or selling a house, etc., you need to update your will and any other estate planning documents you have. Although most states have adopted uniform probate rules, which govern wills and inheritance, there are often differences in the statutes and/or interpretation of the laws that can cause a will to be invalidated. I would suggest you meet with a local attorney who specializes in estate planning and have him or her review your wills.
When should a will be updated? My will is 20 yrs old and I want to update it. Can I just make changes in it and have a notary verify my initials or can I rewrite it completely and sign it in front of a notary and it be legal? Thanks.
A: Your will should be rewritten. Handwritten annotations can often be used to invalidate a will. I recommend that you have a local attorney review your will and draft a new one for you, since there may have been significant changes in the law in your state.
In general, you should update your will anytime there is a change in your circumstances, such as buying or selling property, the birth of children or grandchildren, the loss of a partner. You should also have a will reviewed by an attorney every few years just to make sure it is consistent with state and federal inheritance and tax laws.
1.22 How can I leave a small estate to a friend? I am wanting to know the EASIEST, least complicated and involved way to pass on to a friend all of my belongings in case that I should die. I have a 4 bedroom home on an acre of land with less that $20,000 owing. I have (2) cars and some selected nice furnishings in my home. I am not rich, I do not have any savings, just the home and cars. When I pass on I want this special friend to have all that I own. Can you suggest the simplest way to do this? I do not have any relatives that would fight this in court. This friend of mine is a straight man that is happily married but has been wonderful in my life. He and his wife are so great. I have chosen him also because of my (3) doggies and several cats that I know he will take care of.
A: First of all, have you discussed this with your friend and his wife? There may be tax issues that need to be resolved. There are also issues related to paying any debts of your estate, particularly the amount owed on the mortgage. Unless you have life insurance that would be used to pay off the mortgage, the house will need to be sold by your executor and the proceeds (not the house) would then be given to your friend, minus the mortgage balance, fees and taxes. I'd also discuss with your friend how your pets should be cared for. Finally, think about what you would like to happen to your estate if your friend and his wife predecease you.
The easiest way to do this is with a simple will, which names your friend as the beneficiary of your entire estate. You cannot leave anything to your pets but you can specify that some of your estate is to be used by your friend to provide for them. You can name your friend as the executor of your estate but, depending upon your friend's age and health, you may wish to appoint a backup.
Most attorneys should be able to draft a simple will for you at a reasonable price, since your estate is not complicated. If you have trouble finding such an attorney, contact the lawyer referral service of your state or local bar association.
1.23 Can a person named as an executor decline the role without affecting his inheritance rights? When a person living in Las Vegas dies and his Will states that a friend (non-relative), living in Vancouver, WA. is to be the Executor and sole beneficiary, what would happen if the friend did not want to be the Executor. The friend is in poor health, can not travel, can not afford to travel, does not have any legal documents to allow him to settle estate, knows practically nothing about the person's affairs, except, the person in Las Vegas is a veteran, holds a mortgage on a house in Hawaii (present buyers pay a bank or loan company monthly), is buying a mobile home in Las Vegas (owes around $9,000 on it).
A: A person named as executor of another person's estate can decline to do so. It's why every will should name a back-up executor in case the first-named executor is unable or unwilling to act as executor. If there is no one else named, the state court will appoint an executor. This will not affect the individual's status as beneficiary, and a beneficiary does not have to make an appearance in order to inherit property under the will.
1.24 How can we prevent relatives from challenging our wills? My partner and I both have had Wills drawn up by an Attorney in which we each have left everything to the other in the event of one of our deaths. We reside in Illinois, our home is paid for, and we both have siblings living that we are neither one close to. (Neither of us has been married or have children) Is there something that should be stated in the Will to prevent relatives from trying to take what we have worked long and hard for? Neither of us wants to go through a legal battle when something happens to one of us, and in central Illinois, there aren't any Attorney's advertising that are gay-friendly, so we went to a local Attorney. We just aren't sure if things are drawn up properly to protect one another.
A: Assuming the local attorney was experienced in the areas of estate planning and will preparation, he should have this covered. Take a look at the wills he's drawn up and see if he's covered this in some way. Although there are several approaches, the key is to make it clear that the will hasn't inadvertently left someone out who might have a legitimate claim. Sometimes this is done by leaving some small gift to each of these other persons, so it is clear that they haven't been forgotten. This approach can be coupled with an in terrorum clause which states that any beneficiary of the will who challenges it gets nothing. Another method that is used allows you to disclaim all other possible beneficiaries not specifically named in the will.
A good estate planning attorney should be able to help you exempt as much as possible from the probate process by taking advantage of such devices as joint ownership with rights of survivorship or naming someone as a beneficiary of an insurance policy. These devices can significantly reduce estate taxes as well as avoid possible will contests.
Finally, be sure the will handles the residuary estate in some way. The residuary estate is that part of your estate that is
left over when distribution of your estate is made. A will should consider what happens to your estate if one or more of your intended beneficiaries predeceases you or disclaims the bequest. If you absolutely don't want any part of your estate to go to your siblings, then you can make a charitable bequest.
You are certainly entitled to have another attorney review your wills and the cost should be minimal. Be sure to go to one who specializes in estate planning.
2.1 Am I at risk if my partner is an illegal alien? I am seeing a man who has lived illegally in the USA for 8 years. If he moves into my home as my partner do I risk personal legal liability should the INS find him?
A: Technically, yes, since harboring an illegal alien is against US immigration law. But I don't think it's real likely.The real risk, however, is his being deported. It would be different if you were his employer, since it is illegal in the US to employ an illegal alien. However, I would suggest you and he visit an immigration lawyer if you haven't already done so. He or she can advise your partner as to how he might be able to legally remain in the US. Since you're in the San Francisco area, try calling the Bay Area Lawyers for Individual Freedom (www.balif.org) to see if they can refer you to a gay-friendly immigration lawyer.
Since 9-11, I understand that the INS has beefed up its enforcement efforts as well as its tracking of aliens and expired visas. This means the risk of his being caught has substantially increased. I highly recommend that you and your partner discuss what to do if he is caught, detained and, worse, deported. For example, how would he contact you if he is picked up and detained? If he is deported, where will you contact him? Who will pay for legal representation if he is detained? I you purchase any property together, such as a car, how will you dispose of this if necessary?
See Answer 2.3 for more information on gay immigration issues.
2.2 Can my US partner sponsor me? My visa is expiring soon. I am living with an American Man, I am myself from Germany. As my Visa will expire within the next 6 month, I am wondering what my options are. Is there a way that my partner can support me in getting a Visa, are same sex relationships handled like other relationships etc.? What is the easiest and best way to give us the opportunity to stay together, next to moving to an other country?
A: I wish I could give you encouraging news but, until the laws in the US change regarding your situation, there isn't much that your partner can do for you. If you want to remain in the US, you will have to find some other way to do so. For example, if you have technical skills, you may be able to find a company that will sponsor you on an H-1B visa, however this is a short-term and there is a limit on renewing this visa. As in the previous question, I highly recommend that you speak with an immigration attorney.
You have many more rights in this regard in Germany and the European Union. For example, Danish citizens can legally marry, and therefore can sponsor their same sex spouse. Also, if your American partner qualifies for immigration to Canada, you can be legally admitted as his spouse. See Answer 2.3 for some resources.
By the way, it's good that you're looking into this now while you still have a valid visa. Overstaying your visa, if you're caught, can result in your being banned from re-entry into the US for several years or more.
2.4 Can my non-US partner retire in the US? I am a semi-retired MD living in California and I have a very good friend who is also an MD living in Sweden who will retire in 2004. He would like to retire here in California and be my partner. He is financially independent and I would be his sponsor if needed. How does one approach his obtaining a permanent visa?
I have spoken to an immigration attorney briefly about this matter but his advice was vague and not very encouraging in that he listed the options of: 1)Putting up a million dollars(which I can't) to establish a business to employ locals and this would be an at risk investment but would offer a visa on that basis. I don't understand that. 2)Be a world authority in a subject and would receive a visa on that basis. 3)Attempt the lottery. This again I don't understand.
It seems to me that there is a tremendous bias against western European immigrants but that the doors are wide open for the third world types. I have also heard that if you cross the palm of certain officials with 30 pieces of silver (probably platinum now) that the visa process is lubricated.
A: I just got back from a conference where a good friend of mine, who has become somewhat an expert on gay immigration, gave a talk on this topic. Unfortunately, the news isn't good, particularly since 9-11. The INS is cracking down on people who overstay their visas - particularly tourist visas, which are only good for 30 days - and they are actively tracking all aliens who come into the US.
It's probably unlikely that your friend can get a permanent visa, unless he has a blood relative willing to sponsor him, since you can't sponsor him. There are several other options, though. The lottery is designed to promote ethnic diversity in the US and the quotas are regional. For Europe, the quota is (I think) 19,000 per year. There are different quotas for other parts of the world - these tend to reflect the amount of illegal immigration from those regions. For example, all of South and Central America have a quota of 19 persons.
A second option is for your friend to find an employer who would sponsor him under the H-1B visa program. Because he is a doctor, he is eligible as are a number of other high-demand categories, such as engineers and nurses. On the down side, there is a limit on the number of years an H-1B visa holder can work in the US, they have limited flexibility as far as moving to other jobs, and they are subject to deportation of they lose their job.
Your friend can also apply for a B-2 visa, as a visitor for pleasure. Normally, someone from Sweden (and many other Western countries) wouldn't apply for such a visa since they can enter the US under the visa waiver program for up to 90 days. However, there's nothing to prevent him for applying for a longer visa - I believe it's up to 1 year - but to do so, he has to apply at the US embassy in Sweden. Your friend will have to demonstrate that he is self-supporting, not planning on working in the US, has a legitimate reason for his visit, and has ties to Sweden, such as maintaining a residence, that will ensure he returns to Sweden before his visa expires. This is probably your best bet - I don't see anything in the regulations that would prevent him from doing this annually - and I have friends who own property in Texas and go back and forth all the time. Although I have no direct knowledge of this, I understand that the US embassy in Sweden is pretty fair about granting such visas.
There probably is a certain bias against individuals from various countries, but not the way you think. There are more immigrants in the US in recent years from third-world countries because there is more pressure to immigrate from these countries. Frankly, the average European isn't going to have a substantially better life in the US whereas for most people in, say, Somalia or Guatemala, the US (or Europe) remains their best hope for a decent life. Thus, it appears that there are way too many Africans (or Muslims or Mexicans or whatever) immigrating to the US these days. It's easy to forget that 100 or so years ago, there were "too many" Jews, or too many Irish, or even too many Swedes immigrating. The real bias is the failure of US immigration (and other) law to recognize our relationships and give gays and lesbians the same right as heterosexual couples to sponsor their foreign partners. Hopefully, this will change and the US will join the majority of western countries who do recognize our rights in this, and other, areas.
2.5 I'm divorced but a legal US resident. Can I apply for citizenship? I was legally married to an American citizen for almost five years. We are divorced right now, and I am a legal resident since 1998. Am I eligible to apply for my citizenship? If so, what should I do? I was told I have to wait for five years after I received my first green card. Is that so? I'd appreciate any info concerning this matter.
A: First, did you and your ex apply to remove the conditional status on your visa? You should have done this after you were married for two years. If you didn't, you can do this yourself but you'll have to apply to waive the joint filing requirement.
Once you've been a lawful permanent resident of the US for at least five years, then you can apply for citizenship if you fit all the other requirements. I found the following page helpful: http://www.ins.gov/graphics/services/natz/index.htm - this contains much more information than I can give you here. Also, be sure to meet with an immigration lawyer BEFORE you meet with the Immigration and Naturalization Services (INS) - no matter how nice they seem, I'm never convinced they're on your side.
Since you say you're a legal resident since 1998, you'll have to wait a bit longer to apply for citizenship but certainly begin preparing for this important date so you can file as soon as you're eligible.
2.6 Can non-US couples immigrate to the US? Both my partner and I would like to move to the US. My partner and I live in the UK and both hold UK passports, He is professional and I am "just another office worker" with no specialty. Is it possible for us to a) relocate to the USA permanently and b)is it possible to get a work permit in the fields that we both already work in and finally c) how do we go about it?
It is a very tentative approach but the red tape in the UK means it is so difficult to get an answer from the US embassy without hours of form filling and waiting. Thanks again to yourself and the guys at ApolloNetwork.
A: As you have seen in some of the other questions answered here about US immigration law, I'm afraid I can't hold out much hope. The problem is two-fold: the US has significant limitations on immigration and is not supportive of gay partners. The first is not uncommon for western countries - many of them, including the UK (and EU), have even more restrictive policies than the US. More and more western countries, however, recognize the rights of gay couples and extend immigration rights to partners of their gay citizens. Unfortunately, the US does not support the rights of gay couples in many areas, including immigration, although I believe this is bound to change.
You don't mention what your partner's profession is but there are certain categories of professionals, such as doctors, nurses (I think), computer programmers, for example, who are in such demand in the US that they can qualify for one of the H-1B visas that are annually awarded. Although there is a cap on the number of these that can be granted, the US Congress recently raised that cap, primarily to help alleviate a so-called "shortage" of programmers. This visa has limitations, however, including the number of years it can be renewed, and your partner would need to find a sponsor for the visa. Furthermore, it is not a permanent visa and it can severely restrict your partner's right to change jobs while he is here.
As for you, however, I can only see one possibility and that is to apply for the immigration lottery. Every year, a certain number of US immigration visas are allocated per country. I don't know what the exact number is for the UK but you can find out more about this via the Immigration and Naturalization Service's web site. You have to apply for this through the US embassy in the UK and I don't know what the exact procedure is, so check the INS web site. In fact, both of you can apply for this but your applications are separate and, if one were chosen, you'd have no right to extend this to the other.
2.7 Can my friend move to the US from another country?I have a friend who lives in Brazil. I would like for him to move in with me here. He does have a visa which I believe it is for visiting, he said it is good for 10 yrs. Is there any possibility, and if so, how, for him to get a , I guess you would call it a working visa where he could move here, live with me and eventually get a green card. Everyone I have talked to says it is almost impossible for this to happen. He is a Professional and works for National Cash Register, his job is being eliminated at the end of the year. Looking forward to hearing your advice.
A: I think the possibilities are pretty slim, especially since 9/11 has caused a considerable crack-down on entry into the US. Yes, his visa may be good for 10 years but the length of time he may stay on any visit -- if it is a visitor visa -- is limited. Check the previous questions in the immigration area and be sure to read the November article by my friend, John Nechman, who is an immigration lawyer.
2.8 Can a foreign gay marry another gay in the US? I am a foreign gay and I live in the US. I want to know if there is any law in the US that allows a couple to be married or something like that? If there is a law, what is the process?
A: Unfortunately, no gays and lesbians can marry in the US, although Vermont comes close with its civil union law. However, the Vermont law is no comfort for international couples since US immigration law (which is federal law) does not recognize the Vermont civil union for purposes of allowing immigration of spouses.
2.9 Can a Canadian citizen be with a partner permanently in the US? I am writing to inquire about some immigration laws,I did read your newsletter and find it very helpful,but I would like to know as a Canadian citizen can I be with my partner permanently and obtain a visa to work? I have known my partner for 3 years. He lives in Ft.Lauderdale now.
A: Unfortunately, you cannot use your relationship as a basis for immigration to the US, even if you are a Canadian. However, I believe Canadians find it a bit easier to obtain work visas in the US - more employers seem to be willing to sponsor them. I'm sure you'd both prefer to live together in Florida but it would actually be easier for you to live together in Canada, since Canadian immigration law apparently now supports immigration of same-sex partners.
2.10 Where can I get reliable information on US immigration? I need information on the ways in which a non-USA citizen can remain in this country for an indefinite period of time? Is there some web site that provides clear and easy to understand explanations for the various visas and ways to apply for citizenship. Also, is it true that if a foreign citizen owns and runs a business from the USA, pays those taxes, and has an investment of at least $200,000 in property here, that he can remain indefinitely on what is called an "investment visa?" My lover is French, owns his business and wishes to transfer the main office to the USA, so this is not a hypothetical question. We deeply appreciate any help you may give to these questions.
A: The best and most reliable web site is the US Immigration and Naturalization Service site, at http://www.immigration.gov. I also recommend the Lambda immigration law page (http://www.lambdalegal.org) and the Lesbian & Gay Immigration Rights Task Force site (http://www.lgirtf.org) as secondary sources directed specifically at gay and lesbian immigration.
I think what you are referring to here is called the alien investment visa. However, this requires investment of $1,000,000 (or $500,000 in some specially designated parts of the US) as well as meeting some other requirements for establishing and maintaining a US business. See the information at http://www.immigration/gov/graphics/services/residency/investment.htm. There may be other ways for your lover to at least get a long-term residency visa so I suggest you and he speak with an immigration law specialist.
Another avenue that may be open to you is to register under France's civil solidarity pact law. This confers some of the rights of married couples on registered, unmarried couples and does not require that both parties have French nationality. However, the fact of registration is only a factor to consider if you applied for residency status in France; it does not confer an absolute right. Still, it's something to consider.
2.11 Can I adopt my partner to bring him to the US? I am in love with a young man living in Kuwait. He is 24 and was born in Syria. I'd like to bring him to the US but it is hard to get a visa. My questions are: Can I adopt him and bring him here? Can I marry him and bring him here?
A: Getting a visa for your friend is going to be very difficult, as I am sure you already know, because of the heightened scrutiny of Middle Eastern immigrants and visitors to the US since 9-11. Unfortunately, neither way will allow your friend to become a legal US resident. Same-sex couples cannot legally marry anywhere in the US and so US immigration law does not allow unmarried people, gay or straight, to sponsor their partner. Furthermore, although you can legally adopt an adult in the US, the adopted foreign-born child does not acquire US citizenship unless that child is under the age of 18. Sorry, I can't give you much encouragement on this.
2.12 Will my partner have dual citizenship?It is legal in Finland for us to marry and if we marry does that give him dual citizenship here in Finland? I am a resident of Finland and have a man from the US I am going to marry. If he cannot stay we would have to go back and forth between the US and Finland every three months to stay together. Please advise.
A: Yes, your partner will be able to establish residency in Finland without losing his US citizenship. Finland is among a growing group of countries that provide some form of marriage for same-sex couples. About two years ago, the Parliament passed a civil union law which extends almost all the rights of married couples to same-sex couples, with the exception of adoption. This includes the right to sponsor your partner and it is extended to citizens of Finland, citizens of other nordic nations, and legal residents of Finland.
There are some specific rules involved and they seem a little conflicting to me. For example, you and your partner could register as a civil union in Finland, but apparently the application for his residency must be made while he is outside Finland. Go to the Finnish Directorate of Immigration web site, http://www.uvi.fi, for further information (in Finnish, Swedish, and English) about Finland's immigration law. The forms you'll need are available only from the Finnish police (inside Finland) or from the local Finnish consul (outside Finland); they are not available on the Internet.
Once you've filed all the necessary documents and gotten things approved, your partner becomes a legal resident of Finland, which includes the right to work and the right to travel outside Finland without reapplying for a visa. Eventually, your partner may want to apply for citizenship in Finland. He can do so once he's lived in Finland legally for five years and has become proficient in Swedish or Finnish.
Currently, dual citizenship is not allowed in Finland but this is about to change. There is a new law, the Nationality Bill, passed by the Finnish Parliament on January 24, 2003. Although this bill is not yet approved and will not come into effect, if approved, until June 1, 2003, it will allow foreign nationals who are granted Finnish nationality to retain their present nationality (dual nationality) if their current state allows it.
The US does not require him to give up his US citizenship if he becomes a Finnish citizen. As a result, your partner would only lose his US citizenship if he specifically renounced it at an American consulate or if he did some act that was "contrary to American citizenship," whatever that means. He may want to retain his citizenship, however, in case he wants to return to the US later in life or, if the marriage and immigration laws change in the US, so that you both could legally live here.
Don't forget, though, that a dual citizen is required to abide by the laws of both countries of which they are citizens and this can sometimes create a conflict, which is why countries that don't forbid it still try to discourage it.
2.13 Can a Californian sponsor his partner? Are there any California laws, such as domestic partnership, in which a California resident can sponsor an immigrant?
I have a friend who is a naturalized Swedish citizen and physician who will return in the next year. Both he and I would like for him to be able to retire in CA. However, I understand that there is no immigration visa for retirees and the only ways for him to immigrate other than vacation visas would be 1) to immigrate to be with his American relatives/family, 2) enroll in the Swedish lottery, 3) marry an American woman and 4) invest 1million to start a business that would employ persons in depressed areas. My friend has enrolled in the Swedish lottery. He has no family in the USA. He doesn't have 1 million for investment. Marriage is a remote possibility. Is heterosexual marriage the only recourse?
A: Since immigration is a matter of federal (US) law and not state law, there is nothing in California law, even domestic partnership, that would allow you to sponsor your friend. Even when a US state legalizes gay marriage, as it appears will happen soon in Massachusetts and, perhaps, New Jersey, it will be some time before all of the rights of married couples, including immigration, will be achieved in the US. See my October 2003 column for more on this.
I also can't legally advise you to have your friend marry an American woman in order to get a green card. This is immigration fraud and the Immigration and Naturalization Service (INS) investigates these marriages frequently. That isn't to say it can't be done, but no lawyer can advise you to break a law.
I'm a little confused about your friend being a naturalized Swedish citizen who will return in the next year? Was he previously a US citizen who immigrated to Sweden? If so, did he give up his US citizenship? He may be a dual citizen if he has not specifically revoked his US citizenship when he became a Swedish citizen.
I don't know how you feel about moving north, but you and/or your friend may be eligible to immigrate to Canada, where you can legally marry (currently in British Columbia and Ontario) and where the legal immigrant can sponsor his gay spouse. After the laws change in the US, as they will in time, you can always return here if you so choose.
2.14 What is the status of the Permanent Partners Immigration Act? Can a binational couple marry and live in Canada? Do you know when the PPIA will be voted or whatever in Congress and can a binational couple go to Canada, get married and live there under new the Canadian law?
A: The PPIA was reintroduced in the 108th Congress as the Permanent Partners Immigration Act of 2003. It currently has 115 cosponsors, mostly Democrats. On March 6, 2003, it was referred to the Subcommittee on Immigration, Border Security, and Claims, where it remains bottled up. If you'd like to follow its progress (or that of any other U.S. legislation), go to http://thomas.loc.gov and enter the bill number (H. R. 832) in the appropriate field. If you have not already done so, please send a letter to your Representative asking them to support this important piece of legislation. You can find the name of your Representative by entering your zip code at http://www.house.gov/writerep.
As for your second question, if you or your partner can qualify for legal immigration to Canada, the legal resident can then sponsor the other partner without even having to marry. You may also legally marry in Canada even if you are not a resident or citizen. Currently, same-sex couples are being issued licenses only in the provinces of Ontario and British Columbia. Once the legislation is redrafted and ratified, gay marriage will be legal throughout Canada. I would expect some resistance in the province of Alberta.
Canadian gay marriages are not yet recognized in the US, although they will probably form the basis for numerous legal challenges to US laws including immigration. Therefore, if you and your partner marry in Canada in the near future, you will still be unable to sponsor him in the US.
For information on marrying in Toronto, Ontario, see the Toronto City web site at http://www.city.toronto.on.ca/depts/legserv_marriage.htm. For information on marrying in British Columbia (including Vancouver) see http://www.vs.gov.bc.ca/marriage/howto.html. See also http://www.gayvancouver.bc.ca/marriage.htm. Although not an official site, there is a good web site on Canadian immigration at http://www.immigration.ca.
2.15 How can I help someone gay who needs political asylum? I have befriended a young man and would like to help him but do not know where to turn. The following is an excerpt from his letter. [I've left out the details but the young man is a gay man from Iran who is now in Turkey and seeking asylum in the US because of his fear of persecution as a homosexual in an Islamic state.] Can any thing be done for this man? I feel so helpless and sad. And we take our freedom so lightly. I realize that you are probably overwhelmed with letters so will understand if you are unable to respond.
A: It is sobering for those of us who live in countries with little or no state persecution of gays to reflect on our brothers and sisters elsewhere who have well-founded fear for their lives and their freedom. There are several organizations that advocate for and provide information and assistance on gay immigration and asylum. I'd start by contacting the Lesbian and Gay Immigration Rights Task Force at http://www.lgirtf.org. They have a great deal of useful information, including links to other international organizations (including Amnesty International) who may be able to assist your friend.
In the past, people seeking asylum for political or religious reasons have come to the US on some form of temporary visa, then applied for asylum once they've landed. Generally, these asylum seekers were free to live during the time their asylum claim were processed. However, since April 2003, the US has begun detaining asylum seekers from certain countries until their claim is granted or denied. This can result in a lengthy imprisonment of individuals who may already have suffered greatly because of their sexual orientation or HIV status. LGIRTF has asked the Department of Homeland Security to review and reverse this policy. If you are interested in helping, please look at http://www.lgirtf.org/releases/detainmentoppostion.html.
Your friend should also consider seeking asylum in other countries with a more sympathetic policy toward gay and lesbian refugees, such as Canada. It may not be his first choice, but he would at least be free from the discrimination and fear he now faces.
2.16 What are the consequences if an American citizen marries an illegal alien for money? Who has broken the law, the American for receiving the money or the poor illegal girl for thinking that's the easiest way to get legal?
A: Both the American and the illegal alien would be breaking the law in these circumstances for entering into a fraudulent marriage for purposes of evading the US immigration laws. I want to emphasize it is not the marriage, by itself, that is illegal here, it is the fact that it is done solely for the purpose of getting a visa for the non-US citizen. The fact that the American is receiving money for this purpose would be evidence that it was a knowing fraud. The consequences include fines and/or imprisonment.
Some other considerations apply. Once married, the US citizen must petition for an immigrant visa for the spouse. Once it is granted, the spouse will be notified to go to the local US consulate to complete processing. If your spouse is legally in the US when the petition is granted, they may change their status by applying directly to the US Bureau of Citizenship and Immigration Services (BCIS). Therefore, an illegal immigrant would have to leave the US and wait for the petition to be granted. Also, the visa is conditional for the first two years, after which both parties to the marriage must apply to have the status changed to permanent resident. The BCIS (formerly the INS) considers such marriages suspicious and frequently investigates to ensure the marriage is not a sham.
2.17 Does a US state's domestic partnership or civil union allow a person to sponsor an immigrant? I am gay male, USA citizen, living in California. I am trying to fine some legal way of getting my lover into the USA to be with me. He is citizen of Sri Lanka, but now working in Saudi Arabia with the oil company 'til March of 2004. I am wondering if the recent Domestic Partnership Law (California) can be of help to me? Is there any way that a 'marriage' could solve this? Our current plans are for him to apply for a Student Visa for a local college near me, but of course it can only for several years, besides being very expensive, then I guess he has to go back home. I know others are in the same mess.
A: Unfortunately, since immigration is a matter of US law, neither the California domestic partnership law nor the Vermont civil union law would allow you to sponsor your lover. Eventually, this will change, but that is small comfort to you now. The best you'll be able to do is the student visa and hope he'll be able, in time, to find some other way to legally remain here.
2.18 How can I get a visa to enter the UK? I am in a gay relationship with a man in UK since 4 years. He met me in my country & in Europe .I am from an Arab country, Gay life in Arab countries is difficult. It is also difficult to obtain a visa from Arab country. My question is how can he help to send me a visa from UK.
A: Unfortunately, the UK is no more enlightened than the US in its treatment of gay partners for immigration purposes. I don't know when that will change, although there is pressure on the UK to change its laws because of its membership in the European Union. There may be some other ways he can help you obtain a visa, but since 9/11, there has been heightened scrutiny of visa applications for middle easterners in general, and Arabs in particular. Nonetheless, since immigration and visas are subject to a particular country's laws, your partner should consult with a UK attorney or legal organization specializing in immigration issues.
2.19 Should my partner get a visa? He's in the U.S. illegally. I recently discovered your web site and decided to check out a few of the questions from readers. The question about the illegal and the U.S. Citizen applies in many cases, but not in mine. I have a wonderful man, we are going to have a child, and I've never been happier in my life. He is not a legal citizen and doesn't really care if he is or not. He's not here to obtain a visa, only to work. He's not a trouble-maker, never had problems with the law--he's just an all-around good man. My question is how easy would it be for the two of us to be married. We've been happily together for a long time, and we feel it's the right decision. Thanks!
A: I'm a little confused by your situation, since it isn't clear whether you're a same-sex couple or not. If you are a same-sex couple, then legal marriage is currently unavailable, although this may change in Massachusetts in the next few months. If you are a heterosexual couple, then you can legally marry anywhere in the US.
What concerns me, however, is that this man is an illegal alien. At any time, he may be apprehended by the Immigration Services (now part of the Homeland Security Department), immediately jailed and, eventually, deported. I am sure he is a good man and unlikely to get in trouble, but all it would take is a routine traffic stop. Can you and he live with the constant worry that one day he may not come home and you find out shortly afterward that he has been detained and will soon be deported? Since 9-11, immigrants (legal and illegal) have been subject to a much higher level of scrutiny than in the past.
There are lots of other complications. For example, you can be subject to criminal and civil penalties because you are harboring an illegal alien. If your man has been able to obtain work without proper visas, he is either doing so using false identification (a crime) or with his employer's knowledge (a crime for the employer). Illegal aliens who work in the US are frequently exploited by employers who are not adverse to calling the Immigration Services at the first sign of trouble.
I urge you and your man to meet with an immigration attorney as soon as possible. If you can't afford to hire one yourself, there are a number of non-profit organizations that provide free legal services for illegal aliens. You may also want to try the Immigration Lawyer Referral Service of the American Immigration Lawyers Association (http://www.aila.org).
3.1 Can I get a criminal record expunged (erased)? About 12 or 15 years ago, I was 'caught' in a police sting in a local park where guys would meet. Yes, it was stupid of me and there were all kinds of 'red flags' that said I should have gotten my butt out of there, but I was stupid and naive. So, anyway, I was arrested, charged with Sexual Misconduct. I hired a lawyer and the case was settle as a 'No Contest' and a year probation.
About 7 months ago, I was laid off along with many other people needless to say it is a tough time to find a job. I've had several really great interviews, but have not ever been selected as the top candidate. Of course, all of the applications ask for 'permission' to do a background check and I always grant it for saying 'NO' would surely end any potential for a job. I truly don't know if I'm being rejected because of the 'finding' on the background check, or if it is other factors.
So, my question is this - should I contact the lawyer again and see if this misdemeanor can be cleared from my record? Even if I go thru the expense of doing this...does it REALLY disappear, or will it show up in some other way?
A: I'm so sorry you were entrapped and sorry you got laid off. The telecom and technology job market is about the worst I've seen in 20 years. I think you may find that a lot of good candidates are being passed over and, given that your arrest was so long ago and was for a misdemeanor, that may not be the reason for not getting the job. If you feel comfortable about it, try calling some of the folks you've interviewed with and ask them why you were passed over - but don't volunteer anything except "I''d really like to know how I can present myself better in other interviews." In the future, you might also try deferring permission to do the background check until they've decided to get serious about a job offer and see what that does. If they ask why, tell them that you believe in protecting your privacy and you'll be glad to give them permission at the time they offer you a job. They may not care at the time and I suspect the companies you interviewed with may not even do a check until they decide to hire you.
Unless you are going for a security clearance - in which case a failure to be candid about any legal troubles is often worse than reporting them - I'm not sure a lot of companies would care about this particular black mark. When we did background checks at one company I worked for, we were looking for indications of dishonesty, such as convictions for fraud or theft, or things that might cause problems at the office, such as being sued for sexual harassment. We weren't looking at anything more than 10 years old, figuring that anyone who kept out of trouble for that long was probably not going to be a problem today. But that was our policy and I can't speak for other companies.
Expungement is a legal proceeding that deletes a person's arrest and, in some cases, conviction record. It differs from sealing a record, which merely closes the record to the general public. I believe every state has such a procedure - it's usually a part of their code of criminal procedure - but the specifics vary from state to state so it's hard to generalize. Some states will notify you if you're eligible and others leave it up to you to determine if you're eligible.
I don't know in what state you were arrested, but in Texas you would not be eligible for expunction because your plea of no contest and acceptance of probation counts as a conviction. You would similarly be ineligible if, for example, you were arrested but accepted deferred adjudication or agreed to plead guilty to a lesser charge.
On the other hand, if you had been arrested but then the case was dismissed, or if you were pardoned, you could petition the court to have your record expunged. Even in those circumstances, expunction is a permissive procedure in Texas. That is, you petition the court and the judge may grant your petition, in which case, the record is expunged. But this is entirely up to the judge and some are more likely to do this, I suspect, than others.
The final word on this should come from a criminal defense attorney, who will know the particulars of your case as well as your state's laws and procedures. I would certainly urge you to call a local attorney (preferably the one who represented you) and find out if you can have this expunged.
3.2 What is the cost of expungement? What is the process and the approximate cost of expungement from a misdemeanor offense.
A: For the procedure, please see my previous answer to question 3.1. As for the cost, I simply don't know. I suggest you talk to a criminal lawyer located near the court where the misdemeanor was prosecuted. It's OK to shop around and they should be able to tell your right away if that state allows expungement for your misdemeanor. Lots of them don't.
3.3 What is public disorderly conduct? About 10 years ago I was travelling on a Saturday morning and stopped at a parking area (no facilities) to take a leak. When I finished doing my thing I turned around and a man was about 15 feet behind me with his pants unbuckled/unzipped and was playing with himself. As I was leaving I showed no interest in him but a state trooper jumped out from the weeds and arrested us both. We were charged with Public Disorderly Conduct. I pleaded no contest to avoid any stiff fines. The trooper said that if I fought it that the judge could fine me as much as $2,800. By pleading no contest, the traffic fine was $185. As I was leaving the building the man (from the parking area) walked up behind me and asked if I wanted to get together and get off. Of course, I said NO.
The sad thing is that I was not even doing anything when I was arrested, because I didn't see the guy and he wasn't my type. The trooper said he was arresting me because he remembered seeing me in the parking area four weeks earlier. Even after I explained that I had only moved to this state one week earlier, he insisted he saw me four weeks earlier. What can I do?
Since I am now unemployed and pursuing work, one place I would like to work is for the state/local government. There have been many jobs available that I am qualified for, but with the arrest hanging over my head, I'm not sure what a potential employer would be told that I did. What does exactly does Public Disorderly Conduct means? Will I have an arrest record for life? Any advice you can provide will be greatly appreciated.
A: First of all, the definition of "Public Disorderly Conduct" depends upon the state where you were ticketed. Generally, it means you were doing something naughty in public, but not necessarily something sexual. For example, Texas defines "disorderly conduct" to include using loud and abusive language in public, making gestures in public, peering in a hotel window, or recklessly showing your anus or genitals. Other states have fairly similar statutes.
Yes, you'll have an arrest record but I'm not sure I'd worry about it too much. Since it only involved a fine, I would guess it was a pretty minor misdemeanor and you may not even have to report it. Most job applications don't ask about anything but felonies and major misdemeanors (defined as those that could involve up to a year of jail). If you are required to report it for some reason, I would simply say you were "relieving yourself at a rest stop" and don't elaborate further. After all, you didn't do anything else, anyway, so why volunteer the rest of the information.
You might have been able to fight it but you would have had to do this before you paid the fine. Once you've pleaded guilty or no contest, you've lost your right to change your mind. Just be careful if you ever find yourself in similar circumstances.
3.4 How will an arrest affect my ability to adopt? I know you have gotten a similar question before but here I go. About 2 years ago, I was arrested in Northern Virginia for the first time in my 44 years of life. I was arrested for disorderly conduct. Some cop watched me take a leak and said I was jacking off and had a hard-on. I was standing at a urinal and he was staring at my crotch but, believe me, I was not jacking off but having a hard time going. I went to court and was convicted of disorderly conduct, paid my $2,000.00 fine and spent a year on probation with no problems.
Now my problem: I am about to try to adopt a child. I am married and my wife knows all about this arrest and even went to court with me. She is OK with it, but I want to know how this will effect our chances of adopting a child. Can I get this conviction expunged and, if not, will our chances of adopting be effected? Thanks. I look forward to hearing from you.
A: First, let's address the expungement question. As in most states, expungement is a matter of criminal procedure and usually only available in very limited circumstances. I looked at the Virginia criminal procedure laws and it doesn't appear that you can get this conviction expunged.
Now, as far as the adoption, I don't think your conviction will seriously effect your chances of adoption. It may not even come up in the application process. However, I would be certain to work with an attorney who specializes in adoptions in order to handle this in the most favorable way. Be candid with the attorney about the arrest and your conviction so that he or she can give you the best possible advice.
Finally, don't beat yourself up over this incident. You and your wife have dealt with it together, you paid your dues, and you are entitled to move on with your lives. I'm sure you and she will provide a loving home to some deserving child.
3.5 Should I answer questions without an attorney present? Should I get an attorney? I was questioned about allegations that I sexually abused my 15 year old daughter, all lies. It is my word against hers but I am wondering if I need to protect myself by getting an attorney. I met with the local police, I am a leader in my community and they ask all of the questions and sent his findings to the DA. I was not fingerprinted, nor did I sign any documents. Please Advise.
A: Yes, you should be talking to a criminal attorney and I would advise you to do so immediately. Sexual abuse of a child is a very serious accusation and one that you should not face without legal assistance. That the findings were sent to the district attorney mean that you could be called before a grand jury or could be otherwise indicted at any time. Be sure to find a criminal attorney with some experience representing these types of cases and, preferably, one who has worked in the DA's office, since they often can find out the status of an investigation with just a telephone call.
3.6 Can gay men still be arrested for public sex? Now that homosexuality/sodomy is decriminalized, can a gay man and his gay (or straight or married partner) be arrested for (discretely) having sex in a public place, i.e., rest rooms, parks, rest stops, adult theatres, peep shows, etc.? (When I was in Fort Lauderdale a few years ago, I noted that uniformed police officers were showing up at adult theatres and peep shows.) If arrested, what are the possible charges and what might the legal penalties/consequence be?
A: Yes, public sex is still illegal even though sodomy is decriminalized. The Lawrence decision specifically refers to sex, in private, between consenting adults. Thus, state laws that prohibit public sex are generally considered constitutional, as are laws that prohibit non-consensual sex (rape). Also prohibited is sex with minors, called statutory rape, on the basis that a minor is legally unable to consent even if the minor is a willing participant.
However, if any of these laws criminalize homosexual sex without similarly applying to heterosexual sex, or if homosexuals are treated differently than heterosexuals in the same circumstances, the law would be considered unconstitutional. This is what happened shortly after the Lawrence decision, when the Supreme Court directed a Kansas court to reconsider its sentencing of a young gay man in light of the Lawrence decision. In that case, which was a statutory rape case, the young man received a longer sentence because he had sex with a boy than he would have received if he had had sex with a minor female.
The possible charges vary from state to state and also vary depending upon what takes place. The crime can range from public nuisance (usually for exposing yourself) to public lewdness, for touching another sexually or more explicit behavior. The penalties and consequences vary also, from fines to probation to actual jail time, usually for repeated offenses. You will also have a criminal record which may cause you real problems with employment, adoption and other situations which require you to report arrests and/or convictions.
One significant consequence to be mindful of is that the more severe charges, such as public lewdness, are usually included within the category of sex crimes that require registration as a sexual offender. This means your name and address are available to the general public and there are severe consequences if you move and fail to register with the police.
My best advice is, don't cruise the parks and "tea rooms." In addition to the very real danger that you might get beaten up or robbed, the police regularly patrol them and do target gay men particularly. Sex in a bookstore or adult theater is probably safer, but depends on the owner/manager. If you are arrested, do not admit to anything and do contact a criminal lawyer immediately, preferably one who has experience in this area.
Also, remember that public and private gay sex remains a criminal offense in many countries.
3.7 What happens if I miss a court appearance on a trespassing charge? First I want to thank you for reading this email and in answering my multiple questions. I was arrested for trespassing with the requirement of meeting with a prosecuting attorney. What happens at that meeting? Does the attorney have the authority to dismiss the charges? Assess a monetary fine? I am moving out of state on the day after the meeting so I do not want to go to court at a later date.
The details: I left a public paved bike path and took a graveled road that eventually leads to a dead end. I was followed by what turned out to be an undercover police officer, who asked me why I was on that road. I replied I was out for a walk and he asked, is that all? Apparently he gleaned enough innuendo from my replies to feel I was in search of sex. After speaking to him, I returned to the paved bike path and sat down on a park bench, before starting to go on the rest of my walk. There was another man sitting on the same bench. After saying
Hello, I asked the man if he knew how far it was around the circle that I intended to walk. At that time this same undercover officer came up to the bench and said we were both under arrest as he had also seen that man go down the same graveled road earlier. Apparently that road was a well known hang out for sex and/or drugs, and at that very hour there were many undercover officers in the area in an effort to clean up the spot. At the start I saw a sign saying to stay on the path. Within a block of the start there was an area of dense brush with 5 or 6 small narrow paths leading off the paved bike path and at each was a sign saying
No trespassing. About a block further on was overhead hi-voltage line with a road under the wires. No sign was at that road. About a block further on was this graveled road (a car's width) and no sign posted there either. When I mentioned this to the officer, he said that the general sign posted at the start to stay on the path applied all along the entire distance of several miles. Does the prosecutor actually listen to and weigh my story or is his duty to side with the police and only set a time to go to court? Having been moved by that time, what would happen if I didn't show up in court? Thank you for your comments.
A: I'm sorry that you got arrested in this way. You were lucky, however, that you were only arrested for trespassing (usually a misdemeanor) and not a more serious charge. Others have been much less fortunate.
In answer to your specific questions, the prosecutor's job is to uphold the law; he (or she) is not your friend no matter how friendly he may appear to be. That being said, his office is probably overworked and he may pressure you to plead guilty without a court appearance. Most likely, this will result in a small fine and a relatively minor blemish on your record that would be easy to explain to anyone who cared. Nevertheless, it is and arrest and it is a conviction and there are some circumstances where you will have to report it and/or explain it.
More serious, however, would be the failure to show up for a court appearance. The judge will issue a bench warrant and you can be arrested anywhere you can be found and brought into court for a more significant charge. This doesn't mean that you'll have a bounty hunter chasing after you but, anytime you are stopped by the police, they can (and usually do) check for outstanding warrants, which is how most people get caught on these things.
3.8 Can I be arrested for surfing porn sites? As a person who enjoys the Apollo Network and a few others like it, is there any reason to be concerned about using these web sites in relation to breaking any type of laws concerning pornography? I recently had an acquaintance of mine arrested as part of a government sting for supporting a web site with a credit card in Belarus that apparently had child porn on it. It was a sting by the US Attorney General's Office that nabbed 3 people in Europe running the web site, a collection agency in Fort Lauderdale and people who subscribed to the site and supported it with a credit card.
I haven't talked to my friend since this happened so I don't know the real circumstances of what he was doing or did. However, it's made me a little paranoid about visiting or supporting a web site like Apollo or Silver Daddies. I'm not into child porn at all or pics of younger men. I enjoy looking and meeting mature men. Is there any danger with visiting these sites or supporting them and are we culpable when visiting a site that advertises mature men but then may have pictures of younger men on it. I've never experienced that on Apollo but I want to be more aware of what I need to know.
Looking forward to your response and any advice on this matter. Thanks.
A: Assuming you are living in the US, I wouldn't worry about accessing Apollonetwork or other adult networks, as long as they have no child pornography on them.
What becomes troublesome, however, is that the laws on pornography, as well as laws regarding the age of consent, differ from country to country. In the US, the age of consent is considered to be 18 years, whereas in many European countries, the age of consent may be as low as 14 years of age. Thus, possessing a nude photograph of a 16-year-old may not be a crime in the Netherlands, but would be considered child pornography in the US.
There are several things you can do to protect yourself. First, stay off of web sites that traffic in photos of young boys. Many of these are sting operations, as are many of the chat rooms where you are supposedly chatting with minors.
If, while surfing porn sites, you happen upon pictures that are questionable as far as the age of the subjects is concerned, don't explicitly download the photos (such as, for example, using a command like
Save link. To be really certain, flush the cache on your web browser and erase your browser's history. All browsers have commands for this purpose.
4.1 What is a deed in lieu of foreclosure? I own a lovely condo in a huge, beautiful country club in Cathedral City, CA (Palm Springs). Unfortunately, just after buying here, I suffered a severe heart attack such that my cardiac doctor strongly advised me to move to where I would have close proximity to family support in case of assisted-care needs, etc. So, I'm having to now move to Seattle and cannot sell this condo in the summer here (too hot).
Being in my late seventies and retired, I cannot afford to make a large monthly payment of a total of $1,200/month plus another $900/mo to rent apt. I will have to 'bite the bullet' and lose my 20% down payment when I would stop making mortgage payments (both a first TD & a 2nd TD/equity loan) and ask the mortgage company to accept a deed in lieu of foreclosure.
Question then: in general how does this work, and is there much, if any costs, involved for me. The 2 bedroom condo is nicely furnished, which I suspect the bank would not 'buy' from me, so I'd have to sell the personal property by any means at my disposal.
A: The first thing I would do is look at your condo regulations and deed restrictions to see if you can rent your condo. If you can, then I'll bet there's a property manager in the area who could rent and manage the property for you. If you could rent it furnished (including the manager's fees) for about what you'd be paying for rent in Seattle, then your monthly cost would be the same as it is now PLUS you'd keep your equity in the condo. You could either continue renting or you could sell when the market would be better.
The deed in lieu of foreclosure is really a last-ditch effort to avoid imminent foreclosure. In effect, you are giving the property back to the mortgage holder and you initiate this by agreement with the mortgage company or by simply offering it to them. Whether the mortgage company will accept the deed, and they are not obligated to do so, will depend upon whether they make out better by foreclosing on the property or by accepting the deed. If they accept it, they take title to the property subject to any other liens or encumbrances (such as your second mortgage) and you are free and clear without any significant blemishes on your credit record.
With many lenders, there are certain eligibility requirements. They may require that you be already in default for some period of time, that the property be owner-occupied and that you demonstrate that you have been unable to sell the property. By the time you qualified for these requirements, you might find the real estate market in your area has heated up.
You may or may not lose your equity in the condo if you go this route, but this will really depend upon your state's laws and the mortgage company's policies. Since you have equity in the property, the bank will want to avoid charges of unjust enrichment and so they may offer you some portion of this. You probably won't have any federal tax consequences but be aware that they can occur in these transactions. Also, there will be transfer taxes involved if you go this route; be sure to negotiate this with the lender. You may want to consider hiring a local attorney to handle all of these issues.
My biggest concern with the deed in lieu of foreclosure is, given the time and effort involved, there may be some other, more beneficial options. If you can't rent your condo, then I think you should first talk to your lender and see if they can help you work out some other option. Finally, be sure to get your property listed with a real estate agent. Even if you're going to rent it for a while, you'll eventually want to sell.
4.2 How can I preserve my equity in my ex-wife's house? I am a divorced man and gay (my ex knows about this.) When we filed for dissolution, we agreed that she could live in the house till she decided to sell and then any profits would be divided as stated in agreement. Now she wants to refinance the house into her name and wants me to sign a waiver taking me off the mortgage. If I do that will our agreement for division of profits (if she ever does sell) become void? I don't want to sign any waiver, if that is the case. Please advise me ASAP. Thank you very much.
A: Well, I don't blame you for hesitating to sign anything until you are clear on your rights. And I also don't blame your ex-wife for wanting to refinance the mortgage - the interest rates are so low she could substantially reduce the payments. Here's what you need to look at to protect yourself.
First, a mortgage is simply a loan that has to be repaid and which is secured by the house or other real estate it is used to purchase. When you sell a house, you must first pay off any mortgages (first or second) from the proceeds of the sale. The remaining amount belongs to the owners of the property, who are recorded on the deed. So if you are listed as a co-owner on the deed you have a right to your share of the equity. Having only her name on the mortgage is irrelevant - it simply means that your ex-wife has a mortgage liability in her name that is secured by the house you both own. If she doesn't make the payments, the mortgage holder can foreclose on the house but the remaining funds, after the mortgage is satisfied, will still need to be split based upon your agreement.
Is your agreement about splitting the profits (the equity) in writing? Perhaps it's part of the divorce decree. You need to review this carefully and, if there are things in there that you want to renegotiate, this would be the time to do so. Things to look at are whether you have been obligated to or have made any payments on the mortgage since the divorce. How are these payments apportioned? How much did you contribute out of personal funds (not community funds) to the down-payment? All of these types of questions will affect your percentage of the equity.
Now, if she wants you off the deed -that is she wants to own the house without having your name on it, then she needs to buy you out. She can do this by getting a new mortgage that covers your equity and pays you cash equal to what you both agree is your share of the equity. In return, she gets full ownership of the house and you have no liability or further interest in the house or mortgage. That may be what you both want and may be a good counter-offer since you no longer have to wait until she decides to sell the house.
It sounds like she's ready to negotiate on these issues and I highly suggest you visit with a real estate lawyer in your area who can help you sort through all the implications and negotiate things on your behalf. Good luck.
4.3 Can my partner add me to the deed on our house? My partner and I would like to know how to go about adding me to the deed on the house?
A: This one's pretty easy, although I recommend you have a real estate lawyer help you do it. First, decide on what basis you are being added to the deed. Is it because you have paid him money or accumulated rent? Is it a gift from him? This can have tax implications for you. Second, decide what percentage of ownership you will have. Will it be an undivided one-half? Ten percent? There's no set number for this, it's simply whatever you and he decide. Finally, since you will be joint owners, decide if you want right of survivorship. This means that if one partner dies, his undivided share passes to the other joint owner without having to go through probate. See the above discussion on joint ownership in Part 2 of the Estate Planning article.
Once you've decided all this, the real estate attorney can draw up a new deed and refile it with the appropriate changes. There may be some fees involved in addition to the lawyer fees, but that will depend on your state and county. The deed will still be subject to any existing mortgage on the house. That's OK but if you want the mortgage in both names, then this is a great time to refinance the house.
4.4 Can I sign over my rights in my house to my partner? First of all, I would like to say that I enjoy "Apollo" and the services it provides to it's readers (this one included). I have some questions I would like to know the answers to, and I am hoping you can give me those answers. Currently, I am listed as the owner of a piece of residential property, with my partner listed as co-owner. My question is this: How difficult would it be to sign over my half of the house to my partner? In fact, would it be possible to sell him my half for a very nominal fee? What steps would I need to take to ensure that this is done legally and with no repercussions? Is this a very expensive thing to undertake with an attorney, and do I need to do this with the attorney who was present at the time of the closing?. Thank you in advance for any help or advice you can give to me in this matter.
A: I'm glad you appreciate Apollonetwork. Ron and Hector have done a great job building this community site and I'm pleased to be a part of it.
You can transfer your rights in the house for any amount you and your partner can agree upon, even a nominal fee such as $1. I'm sure you have your reasons but be sure you are being fair to yourself as well as to your partner. There are costs involved; I can't give you a figure on this because the filing and other fees will vary depending on your location. I would certainly hire an attorney to do this for you - you want one who will represent you and not your partner. I don't know that the legal costs should be very much; be sure to shop around for rates on this, it's pretty straight-forward. The attorney will draw up a contract transferring your equity and the deed will have to be filed.
One other thing to remember - be sure you are taken off the mortgage, if any. I can't image you'd want to be responsible for the debt on a house you don't own.
4.5 What do I owe if I cancel a real estate contract? I entered in a real estate contract and deposited $1,000 I am going to default on the contract since the basement has no exit in case of an emergency, I signed the contract not knowing whether there was an exit until my insurance lady asked me as to whether there was one, I did not know so I told her so. She did not make a requirement to get the insurance but I began to wonder. I did not check the inside of the house thoroughly until I went up the second time and wow what a disappointment, so where I stand in this mess I guess I will never know until ?? My real estate agent said I may have to pay 1/10 of the price of the house $130,000 but no where in the contract do I see that statement.
A: It's hard for me to give a definitive answer without actually looking at the contract. In a standard residential real estate contract, you will generally only lose your earnest money (the $1,000 you deposited) but this will depend upon the contract you sign. A contract provision requiring you to pay 10% if you default seems awfully steep - in your case that would be $13,000 - and might even be unenforceable. Courts don't like to enforce penalty clauses, which this sounds like it is. You also might be able to get out of the contract if you can demonstrate that the issue of the condition of the house or the lack of the basement exit was critical to the contract. It doesn't sound like it, though, because it didn't come up until after you signed the contract.
Don't take you real estate agent's opinion for gospel. Although many agents know real estate law well, they are not generally attorneys and you cannot rely on their opinion when it comes to legal matters. I'd meet with a local real estate attorney and have him or her review the contract and issue you an opinion letter. It might cost you a few hundred dollars but they can advise you as to your rights in this contract.
4.6 How can I deed my house to a friend? I have a question regarding naming a person as joint owner of real estate. I have a very good friend, who is caring,thoughtful and considerate. We do not live together nor will we ever. He is STRAIGHT, I am GAY. He accepts that without any problem. I am getting well along in years and want to make final disposition of my real estate, which I own free and clear. I have other assets and, since my health is good, I do not anticipate the need for long-term care. The only living blood relatives I have are some cousins and nephews. Is it possible that I can deed the property to my long entrusted friend and maintain a lifetime residency? For example, could I set it up as a joint tenancy, but not as tenants in common, with a lifetime residency. Thank you. Your help will be gratefully appreciated.
A: There are a number of ways you can deed this to your friend. You can make an outright gift to your friend but reserve a life estate in your home. You can set up a joint tenancy with rights of survivorship but reserve the right to exclude him during your lifetime. You could even put the house into a trust, with you as the primary beneficiary and your friend would get the corpus (in this case, the house) after your death. However, you need to think all of the implications through and for that, I recommend you meet with an elder law specialist who also has some estate planning experience. Here's why.
First, there are going to be some tax implications for both of you, regardless of how you transfer the real estate. Second, for most people, their home is the primary asset they own. I would be concerned that you are giving away an asset that you may need later on to provide you with sufficient long-term care. For example, if your health deteriorated to a point where you needed home health care, how will you pay for this? Or, let's say you decided next year to move into an assisted living facility. How will you pay for this? There are some significant rules related to Medicaid, Medicare and property transfers that you need to review. Third, if you decide to set up a trust, it needs to be set up in such a way that the house is maintained, the taxes and insurance are paid, and, if your circumstances change, it can be altered accordingly.
Another consideration would be if you outlive your friend. If you've transferred your home to him and he dies while you still live there, you're going to have to contend with his heirs. They may not be as caring, thoughtful and considerate as he is.
So spend a little money and meet with an elder law attorney and/or estate planning attorney. You'll need to do this anyway to set up the appropriate documents regardless of what you decide to do, and he or she will be able to help you think through all the implications and to develop a consistent plan for disposing of your estate in such a way that ensures that you and your friend are taken care of. And be sure to keep your friend informed so that he can plan accordingly. To locate an elder law attorney in your area, I recommend you go to the web site for the National Academy of Elder Law Attorneys at http://www.naela.com and click on the link that says "Locate an Elder Law Attorney."
4.7 What does it mean if I rent an apartment without a lease? I rented an apartment about three months ago. I have not signed a lease. Do I need to? I this an advantage or disadvantage for me? Thanks.
A: The answer depends on your state's landlord-tenant laws. Some states would term this
tenancy at will, which means that you remain there as long as your landlord wants you there. Nowadays, most states would probably consider this to be a month-to-month lease, which means that it can be terminated by either you or your landlord with one month's notice.
As far as it being advantageous or not, there are several disadvantages I can think of. First, your landlord can raise your rent at any time, with only a month's notice. Second, you have no agreement with him regarding things such as who pays for repairs or improvements, although state laws will certainly provide some basic protection. Third, there may be some liability issues. His insurance may not cover you if you don't have a lease. On the other hand, you have the freedom to move out, with only a month's notice.
A lease provides a great deal of protection to you, as a tenant, as well as to the landlord, but there isn't any law that requires you to have one. If you and your landlord can live with the uncertainties of not having a lease, then it's your decision.
5.1 How can I get my ex-wife to sell her house? I am in a relationship with my partner of about 10 years now. I was once married for a number of years (more than I care to remember) and have a son (adopted) from the marriage who just graduated a couple weeks ago. My child support ended when he completed high school. He lives with his mother in the house that I have a question about. Our divorce decree states that I get half of an agreed-upon amount of $75,000, minus half of the taxes and insurance. However, the divorce paper also says when she so desires to sell the property. My desire is to have her sell now. How would I proceed?
A: Without seeing the divorce decree, it's a little hard to say. You appear to have rights to half of the value of the house (up to $37,500) but only when she sells the house, which she doesn't appear to have any obligation to do. Are you certain there isn't some event that triggers an end to this agreement. For example, it might be tied to the end of your support obligations on your son. Or it might be that this agreement only ends when she remarries or dies.
I'm also a little confused about the deduction for taxes and insurance. If this meant you were obligated to pay half the insurance and taxes for as long as she owned the house, did you pay these on an annual basis? If she paid these, then this on-going deduction could have exhausted your share of the agreed-upon proceeds and, if your accumulated share is greater than the amount of $37,500, you may owe her money.
Have you spoken with your ex-wife about all this? Has she remarried or does she intend to remarry? Does she intend to sell the house anytime soon? If she doesn't, would she be amenable to buying out your share. After all, if you've paid your share of the taxes and insurance, you have a claim against the title and she may want to have clear title.
I'd advise you to find a local attorney who can review this decree and perhaps file a motion to set aside the decree or to modify it. I'd also have him or her review the decree to make sure any claim you have to the value of the house is filed with your state or local real property record. This will make sure you don't lose your equity if she sells the house or encumbers it with a second mortgage.
Finally, make sure you discuss your situation with a gay-friendly estate planning attorney. This obligation can be an asset (or a debt) of your estate and you want to make sure it passes to your partner and doesn't go to your ex-wife or son unless that's what you want. Good luck.
5.2 Can I get my divorce decree modified? I have been paying alimony to my ex-wife for nine years, we were married for 17 before that. To keep this saga of epic proportions down to a few lines, we agreed that since she has just sold her house for quite a profit we would reduce the payments by 70% of the amount from the original $275 a week to $100 a week starting this month of July 2002. Since both parties are agreeable (for the first time ever!) do I still need to file a "motion to modify" with the court. If I do, can I begin the lesser payments before and while I go through the whole legal process. The divorce decree states that after eight years, which was March of 2001, I could seek to modify the amount.
I have been with my partner of eight years now and am happier than ever, but this alimony has been such a heavy burden both financially and emotionally that I am anxious for this change.
A: By all means, yes, and you should file the modification with the court immediately while your ex-wife is "still in the mood." Even though your ex-wife is amenable to this change, it would be hard to enforce the change, should she change her mind, if it is not in a writing that has been filed with the court. As far as reducing the payments now, this will also depend on your ex-wife's mood. If she has agreed to this in writing then you probably could do so but, otherwise, I'd be hesitant to give her any reason to back out of her oral agreement.
Even if your ex-wife hadn't agreed, your original decree grants you the right to seek a change in your alimony requirements after 8 years. This is probably a good time to see if there are any other changes you can make. For example, does your requirement to pay alimony stop if she remarries? If not, I'd try to get that into the new agreement. A good divorce lawyer can advise you on other changes you might consider but try to find one who will work nicely with your ex-wife. You certainly don't want to get her out of her good mood.
5.3 What are the benefits of domestic partnerships? I would like to find out more information about declaration of domestic partnership. In our case, I am 32 years old and my lover is 75 years; how will this help us on social security and other areas?
A:. In the US, there are two bodies of law that affect us: the laws of the state in which you live and federal law. Both affect issues like domestic partnership, civil union and gay marriage since some things, like social security, are matters of federal law only and some, such as wills, are solely matters of state law. Until such time as the US federal government recognizes domestic partnerships or civil unions (or, dare we hope, same-sex marriage), federal benefits, such as social security or veterans benefits are not available even to those who register under a domestic partnership law (such as California) or civil union law (like Vermont).
On the other hand, if you live in one of those two states, your rights in that state are affected by these laws. So, for example, if you were in a registered civil union and living in Vermont, your partner's estate would pass to you if he died without a will. There are other laws as well that are affected and, since I've had several questions, I will do an article in the near future on these types of laws.
5.4 Are Vermont Civil Unions recognized outside Vermont? I asked this question previously but have seen no reply. How difficult will it be to have my partner treated as a spouse for inheritance of my estate with a Vermont Civil Union decree since we do not live in Vermont? Would you guess it will be probated with or without the Civil Union decree should it qualify in size?
A: I don't have to guess on this one. No state outside Vermont currently recognizes a Vermont civil union decree, however, the proposed New Jersey Domestic Partnership Act will recognize civil unions and domestic partnerships entered into in another state. The decree only has effect in Vermont and a will probated outside Vermont involving property that is not in Vermont would be probated using that state's law (not Vermont's). Furthermore, it only modifies the determination of heirship by allowing a same-sex spouse in a registered civil union to be considered along with blood relatives. As in all other states, the rules of heirship are usually only used when someone dies without a will ("intestate") and can be altered by a well-drafted will. You and your partner need to have a will drawn up by a lawyer in your state of residence.
I apologize that I haven't gotten to your request until now, but as I said in my first column, be patient. Sometimes I've got other things going on - in this case, a new job and a move to another state. I intend to do an article on civil unions and domestic partnership laws in the future, so keep watching for that.
A:Sure, it's based on a tort (a legal wrong) called alienation of affection, although I haven't heard of one being filed by a wife against a man. I don't know how successful she'd be, however. These kinds of suits are pretty hard to win and are rarely brought these days.
5.6 Am I liable on my ex-wife's credit cards? I have been divorced for about 2 years. The divorce degree stated that my wife and I were responsible for the credit cards that were in each of our names. I did a credit check on myself recently and I found that I am still listed on a couple of cards as a secondary user. Since my ex-wife is now having some financial problems, I am concerned her late/missed payments could affect me. Could it affect my credit rating? Am I liable in any way? The cards were not "joint" accounts. Rather, I had a card in my name and was authorized to charge on it.
A: It depends upon the agreement with the card companies. If she simply added you as a second card-holder, she is most likely the only one responsible for the card and it shouldn't affect your credit rating. I found it interesting -- and a little disturbing -- that this was showing up on your credit report. What I would do is make sure any cards in your name are cancelled by calling the credit card companies, getting their address for correspondence, and sending them a registered letter with a return receipt, stating that your name should be removed from the account.
5.7 Can I get custody over or take care of my partner with Alzheimer's? I have a friend who is now 89. He has dementia, if not early Alzheimer. We have never had our financial accounts joined. However, we have been friends AND lovers for 27 years. His niece is his guardian. He has always had a disdain for "old folks" homes. I don't know if I am in his will, nor am I overly concerned about it.
What I would like to know is, She currently has him in an assisted living facility. Needless to say, he does not like it. There are times that I call him to see how he is doing. His reply is"trying to figure a way out of here". Shortly after co-signing his way into the facility he made it known to her that he felt he had been tricked into it. Of course her feelings were hurt, and he backed off. She was exhausted from caring for him for almost two years at home. I know how much he hates it there. He is eating better, has gained some weight, and is in good physical condition. I know he can not live alone!!
I work for the government, I have a good job, good pay, good benefits, and could relocate (I currently am 65 miles from where he is housed). I know the attorney that drew up his will, not personally...but we have meet several times over a 20+ year span. IS there any way I could intervene, not financially. I would just like to provide a place to care for him and let him die with dignity and peace of mind.
A: Wow, you're a catch! You can take care of me when I get old! Seriously, though, it appears to me that your friend is better off where he is. I know you want to take care of him, but an Alzheimer's patient is a handful for anyone to take care of. I can tell you from the experience of friends and family, this is much more than most people can handle. If you have not seen it, I recommend the movie "Iris", in which Iris Murdoch's husband does attempt to take care of her at home. It's wrenching.
Here's why I think the status quo is nearly the best situation and how you can improve on it. That your friend's niece was exhausted by caring from him for almost two years give's you your first clue. He is already difficult to care for. Alzheimer's patients (and anyone suffering from dementia) need constant supervision so they don't harm themselves or others. You have a full time job so you'd need to hire someone to watch him while you were at work and, don't forget, when you need to shop or just have some time to yourself.
Meanwhile, your friend is eating better and gaining weight. That indicates to me that he is getting reasonably good care where he is now and he may have a healthier final years than he would otherwise. Why disturb this? Furthermore, assisted living facilities are hard to get into when you are ill. Alzheimer's patients don't get better and eventually, he'll need to be moved to such a facility. However, you may find it hard to get into one that is as nice.
I would suggest, rather than disturb all this, if you can move closer, then do so. Your friend and you will cherish the frequent visits and you'll be in a better position to see that he is well taken care of. When my partner's mother had to go into such a facility, we noticed that the patients who had frequent visitors were much better cared for by the staff than those who's family and friends neglected them.
From a legal point of view, there's not much you'd be able to do without the niece's permission, anyway, since she is his legal guardian. If you lived closer, however, I'm sure she'd welcome the assistance with visiting and all. It get's very tiring for care givers. Make sure she adds you to the list of people who can visit and, if its possible, take your friend out for movies or other excursions. Good luck.
5.8 Dealing with a mentally ill partner. My lover is sucking me dry! Last year I left my wife and family, got a divorce and started exploring a new lifestyle. I am over 50 and realize it is a little late in life to decide to come out and accept being gay but as I soon discovered, I am not alone in this venture. I started a long distance relationship which led to this man quitting his jobs and getting a job where I live and moving in with me. He is in love with me and I care for him deeply but I have had some reservations mostly because I did not want to jump from a straight marriage into a gay marriage. He has allowed me to experiment to satisfy my new curiosity and I would say we have had a very nice relationship.
When he moved in we had a verbal agreement that we would share expenses and I realized this might be harder on him than on me and assumed that I might have to pay for incidentals and that was fine with me. I do have alimony and child support to pay and that of course comes first. A few months after he moved in with me he lost his job. For a couple of months he looked for other work and could not find any. Because he had quit his other jobs out of state and he had not worked in this state long enough he did not qualify for unemployment. He quickly ran out of savings and I was able to keep up with his car note and insurance and phone bill and also pay his share of the shared expenses for a couple of months but in December he had a car accident which required a large deductible to pay for the auto repairs and then he had to pay for different insurance and after that I was tapped out as well. So I stopped paying his bills and he is now almost 3 months behind on car note, car insurance, phone bill and lawyer bills. I failed to mention that he filed bankruptcy immediately upon moving here and those debts have been discharged.
He is no longer looking for work and is very depressed. I fear that he might be agoraphobic or have more issues than just being depressed. He has gotten where he will not leave the apartment unless I am insisting that he do so and I am the one that is driving. I know he is about to lose his car insurance and his car and there is really nothing I can do about it.
My problem is that he will not tell me what has him paralyzed in fear and/or shame. I know that he does not want to borrow more money from me. I never would think for one minute that he thought this is how things would happen. He has always been able to maintain by himself (he had two jobs before he moved). He never has wanted to bother me with personal concerns. At one point he had wanted me to move in with him and I just don't think he's taking advantage of me on purpose. I really think he is mentally ill and cannot do for himself.
I have several concerns. I don't want to throw him out with no place to go but I cannot keep paying for his room and board and justify this. I am concerned that he has retreated into a place where I cannot really reach him. I know he needs professional help but I cannot afford it and we really do not have free clinics in my area. I have written to his family and they are concerned but do not seem to realize how serious this is (I guess it is not serious for them...only me). If it does come to the point where I have to leave him to fend for himself for my own self preservation is there some legal recourse for me to have him removed, or institutionalized. I feel like I am simply enabling him to continue in this morose but I have a soft spot in my heart for him and dread hurting him. Any suggestions?
A: I'm not an expert on mental health but it seems to me that your partner is suffering from some form of depression. I suspect that, given his history and the "hands off" response of his family, he may have some chronic form of this disease. You are kind to continue caring for him but dealing with such a partner, particularly when you are dealing with your own process of coming out, could be quite overwhelming. Therefore, I have two questions for you. Do you love him? And, if so, can you afford to care for him, both emotionally and financially?
If you want to help him, there are probably more resources than you may realize. There are some state and local resources in most states for short-term confinement and treatment. I worked at the Harris County Psychiatric Center some years ago and we could treat indigent people for up to 30 days. This was usually long enough to diagnose and stabilize the person which may be all that is needed. I would call your county health department and see what they can tell you.
If you don't feel you can help him, you have no legal obligation toward him. You may exclude him from your house, change the locks, etc. You may not feel good about doing this, but only you can decide what to do here. You may want to consider paying to move him back to where he came from or back to his family if that's possible, just so he's not sleeping on the curb in front of your house. Good luck and keep me posted.
5.9 Can I get my child support decreased? My ex-wife wants to increase my child support. Hi, I'd appreciate your help. My former wife has recently asked for a child support review and finding they want to double what I pay. I think the fact that my overtime was excessive last year is the reason for the increase. With very strong indications that the overtime is going to be far less this year, should the child support agency take this into consideration and lessen the amount?
A: Since you and your ex-wife don't agree on the increase, you are entitled to ask for a hearing to argue your case. To do this, however, you'll have to make a formal request with the court that has jurisdiction. Look at prior paper work for the custody and support agreement to see which court this is then check with the clerk of the court to find out what paperwork you'll need to file. They may have a form. Do this quickly because there is probably a time limit, such as 10 days or 30 days during which you have to file your hearing request. If you miss this, you may waive your right to object.
At the hearing, be sure to bring evidence of what you expect your income to be. Since she's basing the request on your prior overtime, you're going to have to demonstrate that you don't expect as much or any overtime in the coming year. Ask your supervisor at work if he or she can provide a letter indicating how much overtime you will be able or expected to work in the next year. Are you working less overtime now? If so, bring recent pay stubs to show the decrease in income. If you don't have these or can't find them, get your payroll department to provide this documentation for you. But don't let them lump your income into annual or quarterly sums - this may not show that the trend in your income is down rather than up. Do you have increased expenses? You should bring evidence of this as well, especially if you have job-related expenses such as transportation, tools, or insurance.
Is your ex-wife going to be represented by an attorney? You may want to hire an attorney yourself. Although the cost may be high for a court appearance, you'll certainly save in the long run if your support payments don't go up. If your wife isn't represented by an attorney, it may still be worthwhile to get a few hours of an attorney's time even if you make the appearance yourself at the hearing. A good attorney will be able to help you draft the hearing request and help make sure you cover every argument.
Don't forget, even if the judge awards the increase, if your income actually goes down, that represents a material change in circumstances that would allow you to petition the court for a reduction in payments.
5.10 I have read on a gay web site that you can declare your gay relationship in different states but when I wanted to go back to check how to do so I forgot how I did get into that web site. Do you have any idea on how to declare your relationship or if there is any web site for that.
A: The only site that I can think of that might come close would be the Partners Task Force for Gay & Lesbian Couples web site (http://www.buddybuddy.com/toc.html), which has information about the rules in Vermont, Hawaii and California, as well as information about marriage laws in other countries. So far, these three are the only US states that I am aware of that have any kind of law relating to same-sex relationships. Official information on Vermont's civil union law can be found at http://www.sec.state.vt.us/otherprg/civilunions/civilunions.html. Official information on California's domestic partnership law can be found at http://www.ss.ca.gov/business/sf/sf_dp.htm. Hawaii's Reciprocal Beneficiary law can be found at http://www.state.hi.us/health/records/rbrfaq.htm. Hope these web sites help you find the information you need.
A: Sort of. See Question 2.12 above.
5.12 Should I relocate to Canada in order to get married? Greetings again! First I'd like to thank you for taking the time to deliver a VERY useful service to our community. If you're like my brother(another lawyer), you have lots of people asking you for "some advice...", so your time is very valuable.
Now the question: I am currently in a committed, but long distance relationship in the USA (I am in NJ, he is in the Michigan/Indiana area). Based upon current events, I watch with interest what our neighbors in Canada may be on the verge of doing with Gay marriages. If it should come to pass, and even if it doesn't, I am seriously considering relocating to Canada and becoming a citizen. If that happens, and they have Gay marriage, do you think it would be possible to bring my partner up (assuming I am accepted-a 45 year old degreed professional...) and get hitched there? Obviously there are a lot of "mights" and "maybes" to be dealt with, so I'm really just looking for an informed opinion before I get ready to plunk money down on a good immigration lawyer. I'm looking forward to hearing your take on the situation. Thanks again for your efforts.
A: UPDATED: And thank YOU for your compliments. Canada has now become the third country in the world to make the move to full marriage benefits for gay and lesbian couples. Over the next few months, the national government will be updating the laws affecting marriage in all provinces. In the meantime, you may now legally marry in the province of Ontario. In addition to this welcome news, immigration laws in Canada are very liberal in regard to US citizens who want to move there, particularly when it comes to degreed professionals. Finally, Canada is among the countries that recognize same-sex relationships for purposes of immigration. Thus, I think you would be able to relocate to Canada, marry there and bring your partner there.
However, since you're in New Jersey, don't discount the efforts to extend the state's marriage laws to same-sex couples. A group of very courageous gay and lesbian couples have brought suit in New Jersey state court challenging the marriage laws. Because the case is solely based on the New Jersey constitution, and not the US constitution, the case will be decided by the NJ courts only. This means that the case will ultimately be decided by the NJ Supreme Court, which has ruled favorably on other gay and lesbian issues. Although the lower court recently dismissed the marriage suit, the case is expected to be appealed. There are also legislative efforts to pass a domestic partnership law, which are now proceeding quite fast and don't appear to have any significant opposition. In a recent poll in Hudson County (across the river from New York), a majority of residents favored gay marriage rights.
For all the jokes about New Jersey, it's a great place to live if you're gay. The state Law Against Discrimination prohibits discrimination on the basis of sexual orientation and gender identification in public and private employment, housing, accommodations, etc. The courts are quite liberal and have ruled in favor of gay rights in many circumstances, including adoption. My take on the marriage efforts here in New Jersey are that it could well be the first US state to extend marriage benefits to same-sex couples or, alternatively, follow the lead of Vermont and adopt a civil union law. Now that I've passed the New Jersey bar exam, I intend to become involved in this effort.
Also, don't discount Massachusetts, either. Their state Supreme Court recently ruled that the current marriage laws unconstitutionally discriminate against gays and lesbians and has given the legislature 180 days to amend the laws accordingly.
5.13 How can I obtain custody of my half-Philipino son. I have been separated from my Philipino wife for two years and we are now legally separated here in the US, but since my soon to be ex-wife and my son live in the Philippines she is refusing to share custody of our son. Six months ago I was able to convince her to get my son's visa to travel to the US, but obstacles arose and were not able to get him within that time frame. I now can go and get him so that he can visit his family here in the US, but his visa needs to be renewed and she is refusing to let him leave to visit the US because our relationship is now over. She has told me she will take our son to another location and will never allow me to see him. What are my rights in the Philippines since I am an American concerning my son? I am desperate and need advice!
A: I found some information for you at http://www.international-divorce.com/philippineschildabduction. Unfortunately, it's not going to be very easy for you to get custody through the Philipino or US legal systems. First of all, Philipino courts will generally award custody of children under the age of 8 to their mothers. Secondly, the Philippines are not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, an international law that requires countries to recognize other countries' custody decrees. Therefore, the Philipino courts are not bound by a US court's custody decree.
I don't know why your wife is so adamant but you may get further through persuasion than through legal efforts. She may be using him as a way to increase support payments to her, or she may genuinely fear the loss of her son. I would certainly try to convince her that your son could benefit from US schools and the better standard of living here. Try to see if there are people she trusts, such as community elders, priests or nuns, sympathetic family members, or others who might intercede on your behalf and help you and her work out some form of accommodation. I wish I could be more encouraging.
5.14 Is this elder abuse? Hello, I have a sensitive issue. My father-in-law forces his wife who has Alzheimer's to vote. She is unaware of what she is signing and when she asks questions as to what it is she is severely yelled and screamed at until she signs. This has gone on for several years.
My father-in-law is a very verbally abusive person and the family just ignores it as his "normal" behavior. I am concerned at times because if he thinks they are alone he really lets her have it verbally. He fills out the voting ballots and orders her to sign it and then proceeds to start screaming if she objects. He laughs when I told him that it is a felony for her to be forced to do this. His answer was "hey I`m going to take advantage of getting two votes for one because of her Alzheimer's until I`m told to stop". He then asked me "don't you tell your wife how to vote?" (this is HIS DAUGHTER) He is 72 and has always had his wife wait on him like a slave.
Is he able to do this and who could I write to have it stopped. I am a disabled veteran (15 years in service) and fought for the right to vote, but I also served to uphold the rights of the mentally challenged from harm also. Any info is appreciated.
A: The problem isn't simply one of voter fraud (which is a rarely-prosecuted felony), it is that your father-in-law is abusive to his family and has probably been so to some extent all his life. I'm sure your wife can give you plenty of examples of past abuse. These family situations are very difficult to deal with, particularly because of the effect on your relationship with your wife and other family members.
Have you spoken with your wife about this situation? How does your wife feel about her father and mother? Does she have other siblings who feel the same way? If she doesn't think there's a problem and there is no physical abuse, there probably isn't anything you can do. Even if you decide to do nothing, with your mother-in-law's worsening mental condition and your father-in-law's advancing age, you and your wife need to evaluate other care options for your mother-in-law. As I've said before, caring for an Alzheimer's patient is financially, physically and emotionally draining. It may be that part of the problem with your father-in-law is "care-giver fatigue" and he may welcome something like adult day care or some in-home help.
On the other hand, if you and your wife believe your mother-in-law needs to be removed from your father-in-law's care, and you have the financial, emotional and physical ability to do so, you need to consider a guardianship proceeding. Under most marriage laws, default custody of an incapacitated spouse lies in the other, non-incapacitated legal spouse. However, other family members, such as a daughter, have a right to apply for guardianship (also called conservatorship) over a parent. In a situation like this, your father-in-law most likely will oppose the application, in which case a judge will make the choice between guardians, based upon what is best for your mother-in-law. I recommend you review the article I wrote a few months ago on adult guardianship and conservatorship, then talk to a local lawyer with some expertise in this area. I recommend finding an elder law specialist through the Academy of Elder Law Attorneys (http://www.naela.org). Good luck.
UPDATE: I want to thank one of my readers, who provided the following additional advice:
5.15 Can I adopt my adult partner? Is there any way to adopt a foreign 30 years old here in the US? I am 66 years old and I want to adopt this young man.
A: Yes, if he is a legal resident of the US. No, if he is not. Adoption of an adult does not extend immigration rights to the adoptee.
5.16 Can I leave my incapacitated partner alone while at work? Like many before me, I'd like to thank you for the wonderful service you provide to our community. I think your answers are thoughtful, concise, and right on the money. My question is twofold and I hope you can give me some guidance in the right direction.
My partner and I have been together for over 23 years. I'm 43 and he's 73. Two years ago he suffered a massive stroke that left him paralyzed on the right side and he cannot speak. I have DPOA and I am his sole care giver. Fortunately I have a job that only requires me to be gone for usually two nights a week, after I've put him down for bed. This arrangement has been working out just fine. His niece (who is a physical therapist) rang me last week and during our conversation said that she thought I should get hired help to be here while I'm gone. She felt that by leaving him alone was borderline neglect and that I maybe breaking the law. I couldn't believe what I was hearing. She's never lifted a finger to help her uncle and now she has the gall to accuse me of neglect! After I calmed down, I got to thinking to where my liabilities really do lie? Could this be construed as neglect in the eyes of the law?
I figured out that if I had hired someone to be with him while I was at work, I would have spent almost $30,000 on care since he had his stroke. I have no idea what the long-term costs could amount to. Even though we are not poor, when we started our relationship neither one of us had a dime to our name. We now own 4 homes (three in his name, one in mine) together and both have reasonable portfolios. I would hate to lose all we worked hard for, so what can I do to get him the adequate hired care without losing our assets. If I moved all assets to my name would he qualify for Medicaid and would they pay for at home care? Is that legal? As it stands now I take care of EVERYTHING in his life so my responsibilities wouldn't change if all assets were put in my name. What is the drawbacks from doing this? As a side note, our wills are written that in the event of either of our deaths the survivor gets the bulk of the assets. Thank you.
A: Thank you for your compliments. I would certainly be concerned about leaving your partner home alone all night long, particularly since he has partial paralysis and is unable to speak. Even if he sleeps through the whole night, he would be unable to get help in the event of a fire or break-in or other emergency. It doesn't sound like you need a home health care assistant at these times, just someone to stay the night when you're unable to be there. Look for someone trustworthy who is available to sleep over. It shouldn't cost too much.
One of the few advantages of being part of a legally unmarried couple arises in these situations where one spouse needs extended care. Eligibility for Medicaid is based upon the assets of the couple (if legally married) or the individual needing the care. There are threshold limits above which your partner may be ineligible for Medicaid assistance. However, many couples and individuals can place these assets into trusts that then allow them to qualify. They can also disburse or transfer assets in order to come in under the threshold. It's a complex area of planning and I'm afraid I don't have much more information than that.
You need to meet with an elder law attorney who can advise you on specific ways to structure your partner's assets so that you can continue providing him with adequate care, qualify him for Medicaid and other assistance, and protect your own assets. The Academy of Elder Law Attorneys (http://www.naela.org) is an excellent resource. You might also check with AARP, which has begun listing preferred legal providers to its members at http://www.aarp.org/lsn/.
A: That depends on the state of residence of the parent who has been ordered to provide support. In some states, SSI benefits and other types of entitlement payments are considered exempt and cannot be garnished to pay child support.
In general, pension payments and many other types of retirement income, as well as regular income, unemployment, and non-entitlement disability insurance income may be garnished to provide court-ordered child support. Many states also provide other "incentives" to pay child support, such as non-renewal of driver's licenses. The best thing to do is check with your state's Attorney General's office or your state's child welfare office.
5.18 How long do you have to be separated from your wife in order to be considered legally divorced? I live in California. Is there such a law in California?
A: I'm not aware of any such time limit in any state. You can remain legally separated for an indefinite period of time without ever getting divorced. However, many states (including California) allow one spouse to initiate divorce regardless of whether the other spouse consents. Keep in mind that once you file for divorce in California, there is a mandatory 6 month waiting period from the time the other spouse is served until the court can grant the divorce. Also, California's registered domestic partnership law and Vermont's civil union law prohibit partnerships/civil unions where one or both partners are legally married or in another domestic partnership or civil union. If you want to register under either of these laws, you must wait until your divorce is final.
5.19 How can I undo a conservatorship (guardianship) over me? How can I get control of my life back? I know this is probably an unusual problem, but back in 1994 I was seeing a doctor for bipolar disorder. At that time he had me on meds and I did not realize until 6 months ago that he had me over-medicated. At that time they had me sign my disability checks over to a payee who has complete control of checks and bank account. Also, at the same time the payee had me sign a paper giving him $30.00 per month to handle my money. After talking with Social Security they said the position of payee is voluntary and not a paid position.
My new doctor has been cutting my meds back and taken me off the most dangerous ones. I feel better now but still have no control over my money which makes me feel like an incompetent child. I am unable to get bank statements or any info on the account which is in my name from the payee or the bank.
Since I was over-medicated at the time this all took place I was wondering if there is any way I may gain control of my life and get my dignity back.
By the way, the old doctor has been asked three times to turn my records over to the new doctor which he has refused without explanation. I have written to a law firm on this matter a month ago and did not receive any response either way or suggestions on what to do. Any suggestion from you would be greatly appreciated.
A: Yes, there are several things you may do to regain control over your affairs but it will depend upon how that control was given up. Adults are presumed competent to handle their financial and day-to-day care. However, when a person becomes incompetent, through age or sickness, there are several mechanisms that may be used to allow someone else to take control of the incompetent person's affairs.
Powers of attorney are often used because they can be drafted in such a way that they "spring" into effect only when the subject is determined to be incompetent. There are three kinds: financial powers of attorney, medical powers of attorney, and general powers of attorney (which covers both); not all have to be in place. For example, you may only need a financial power of attorney so that you can give someone the power to manage your financial affairs, such as paying bills, if you are incapacitated in some way. These documents must be signed by the subject at a time when the subject is capable of understanding what he or she is signing. The good news about these is they are easily revocable. You simply tell the holder of the power that you are revoking the power; it's best to do this in a new document that simply says you are revoking any and all prior powers of attorney, then sign it in front of two witnesses. You may present this to the bank and to the Social Security office to change control there.
On the other hand, it may be that there was a guardianship or conservatorship proceeding held while you were medicated. This would be held in a court in front of a judge, so depending upon your condition at the time, you may remember this proceeding. There are two types of guardianship: guardian over the estate and guardian over the person. If guardianship is involved, the proposed guardian may have applied for one or both forms. A guardian is entitled to some compensation, usually set by the court. The good news about guardianships is that they can be revoked upon your showing that you have returned to competency. The bads news is that this means another hearing in front of a judge.
You first need to find out what documents convey the authority to handle your finances. Ask the payee to see the documents that you signed giving him or her control and any other documents he or she filed with Social Security and the bank. You should also ask this person what other actions they have taken on your behalf. For instance, did they sign a lease for you? If he or she is unwilling or unable to provide these documents and information, you may have to get an order from a judge. For help, call Vermont Legal Aid, Disability Law Project in Springfield at 802-885-5181 or Vermont Volunteer Lawyers Project in Burlington at 1-800-639-8857.
One other thought occurs to me but I don't have the facts. Bipolars often get into serious financial difficulty during the manic phase. If this happened, it may have caused a bankruptcy judgment during the time when you were heavily medicated. If so, the judge may have assigned a trustee to handle things, but this is unlikely.
As for the medical records, you have a right to a copy of your medical records. You new doctor may not have sent over the correct form. Since the Health Insurance Portability and Affordability Act (HIPAA) privacy regulations went into effect, doctors' offices have stepped up there procedures for releasing records and there is much confusion in the profession. Ask your old doctor for the appropriate forms for transferring the records to your new doctor. And if he gets ornery about it, call the legal services folks to see what they can do.
Be sure to check with the two legal services I mentioned above. They provide pro bono (that is, without fee) services and most of them are real experienced lawyers. Good luck and keep on those meds.
5.20 What forms and directives should a gay couple prepare? My gay partner and I have decided to commit to a monogamous relationship/partnership to be formally acknowledged at a commitment ceremony on February 20, 2004. We are concerned about our rights as partners to make decisions for each other in the future.
We have heard about all sorts of directives and forms that should be drafted such as medical power of attorney, designation of conservator, physician directive, hospital visitation directive, financial power of attorney, etc. Are all of these necessary? Are there any others we should be aware of? Should these be drafted by a local attorney and would most local attorneys be aware of these forms? We would appreciate any help/advice you could give us regarding this matter.
A: Yes, you should have all of the above forms and directives prepared, as well as a will. Most estate planning attorneys should have forms for these and often will offer these as part of a package deal when preparing a will for you. They can also advise you as to which property can be exempted out of the probate process, such as owning a home as joint tenants with right of survivorship.
I would add to these a living-together agreement. This document can be difficult to prepare since it will seem like preparation for breaking up, which it is in a way. However, it can alleviate a lot of problems during the relationship, such as who pays for what, who owns what, who does what chores, etc. The only thing you should absolutely leave out of this document is any description of a sexual nature, since the information could be embarrassing if the document was ever brought into court. Also, if you or your partner have children, you'll need to discuss co-partner adoption, if that's an option in your state, as well as related issues. If you have children now or later, you'll need to discuss this with an attorney specializing in family law. Finally, you should have a pet directive, if you own pets. This document grants permission to another person to remove your pets from your house and provides instruction for caring for them.
Congratulations on your up-coming commitment. I wish you many happy and healthy years together.
5.21 How do we break up?My partner and I have been together for twenty nine years. I think we truly respect each other, and yes, love each other. The problem is we have not been intimate for two years, and now live together as "platonic" friends even though we share the same bed.
We have a home together, fully paid for (registered in his name) a business and cars etc. I am thinking of suggesting we have an open relationship, as I'm sure both of us need some sort of male contact. Apart from each other. In essence this would be a "split" or break up, but I personally feel that after all these years I would not like to live with another person, seeing as we know each other so well and yes, are great friends. He is my best bud!
This may be a bit of a wobbly for you: We live in South Africa, where our constitution does not allow for discrimination of any kind! (Your politicians should take note!!) It is generally accepted that after five years any relationship between two persons that is being dissolved is regarded as "community of property" and therefore is shared equally in the event of a "divorce"/separation.
My question: In the event of him saying we are to separate fully, what claim do I have to the "estate"? Do we have to pool our bank balances, stocks etc, including offshore investments,and then this is divided, or do we keep what is in our names and beggar takes the hind leg? What would be the legal precedent here? I suppose one could look at it as a "straight" marriage, without the papers...
A: First of all, I'm not familiar with South African law, other than being aware that your Constitution added very strong protection on the basis of sexual orientation. So I'd definitely recommend that you consult a local attorney, particularly one who has experience with gay relationships.
That said, it seems to me that if South Africa has community property laws that extend to gay couples, then you'll probably find that income and property that was acquired during the relationship would have to be evenly divided. Some jurisdictions consider property acquired before the marriage, as well as gifts to an individual (such as inheritance), to be separate property that is not part of the community and, therefore, not divided. Depending upon your laws, it could get pretty hairy trying to sort out everything.
One problem I can see is establishing when the community began, since you are, presumably, not legally married. A judge could consider it to date back to the date you and he began living together. Or the judge could date it back only to the time at which such relationships became legal. This is where a local lawyer would be best able to advise you.
Finally, are you looking to break up with your partner or just get a little on the side? I would suggest that you and he see a relationship counselor who could probably help you facilitate discussing this sensitive topic with your partner. Such counselling can be very useful, even if you and he decide to go your separate ways, since a good counselor can help you
untangle your lives. And who knows? Maybe your partner's looking for permission to play a little, too. Good luck.
5.22 Do you give any advice on where you can find a lawyer concerning palimony? I have a problem and need to discuss it with an attorney but the ones I have contacted say they don't deal with such issues?
A: You may have been asking the wrong kind of lawyer. I would suggest talking to a family law specialist or someone who does divorce law. Even these lawyers may not have encountered a palimony question—they don't come up often—but they may be more familiar with any cases in your state. Look for an attorney who has some sort of board certification. Certifications are only provided to attorneys in certain fields with significant experience and training in their specialty. Finally, most state bar associations have a family law section, and some have gay and lesbian law sections. The officers of such sections may be able to answer some of your questions or direct you to an attorney who can help you. For a list of associations, go to http://www.findlaw.com/06associations/.
5.23 Can my Mexican wife force me to pay child support in the US? I am a USA citizen who retired to Mexico and got married last March 2003. I am now seeking a divorce here in Mexico and my (soon to be ex) wife's attorney is demanding alimony and child support payments (child to be born this coming March).
Can you inform me if my monthly government retirement check and or VA benefits check can be garnished in order to secure payment for alimony/child support. And, can my (ex) wife's Mexican based lawyer enforce such garnishment? Her attorney is demanding that I pay $4,000.00 pesos a month (about $400.00) for 18 years and this for a marriage which lasted only 5 months. Thank you for your time and assistance.
A: I'm sorry, but Mexican law differs greatly from American law in many ways, so I really can't give you any guidance. You'll need to speak with a local attorney about your rights there, particularly if you plan to remain a resident of Mexico.
If you leave Mexico, however, and return to the US, it will be difficult, but not impossible, for your ex-wife to enforce any judgment for alimony and support. The US does not currently have an agreement with Mexico to enforce child support agreements. Thus, your ex-wife would have to hire a US attorney to enforce a Mexican judgment in an American court. American courts will recognize foreign judgments but only if the court believes it was just. This means the judge could inquire into the alimony and child support agreements arrived at by the Mexican courts. If your ex-wife chooses to pursue you in the US, I think she would be successful in at least getting the child support enforced.
If you remain in Mexico, however, your ex-wife would be able to enforce any judgment over any assets that could be found in Mexico. This would include any personal possessions you have there, as well as any funds in a Mexican bank or a Mexican branch of an American bank. I don't know how you receive your pension and benefits check, but if they go into a bank in Mexico, they are subject to enforcement of any judgment.
If you intend to remain in Mexico, I hope you have hired local counsel to represent you. I'd also urge you to recognize your financial obligation to your coming child. Your child shouldn't suffer because you and your ex-wife are at odds. The fact that you were only married five months doesn't diminish your responsibilities as a father.
6.1 Can I get my nude photos developed? What are the legalities of having nude pictures of myself (I'm 34 yrs. old) developed at a local Walgreens or other drugstores? I just have a regular ol' Kodak disposable camera and would like to get some pictures of myself taken so I can email them to "friends" or have them posted on sites like Apollo. Can a drugstore refuse to develop such pictures? Could my privacy be invaded if such pictures are developed? I would appreciate any help or advise you could give.
A: As for the legalities, they will vary as will the policies of particular photo developers. You'd have to check with the stores to find out what they will and will not develop. Obviously, if you don't tell them when you give them the film, they won't know you've bared all until they develop them, at which point they may simply destroy them. You are bound by the contract they hand you when you give them the film in the little envelope so be sure to read it before you give the film to them.
If you hand a drugstore clerk a roll of film to develop, you've given up any expectation of privacy you had in the contents of that film. Depending upon the contents, you may also be "outing" yourself. Also, if you post such pictures on the Internet or email them to someone who has no legal obligation to protect your privacy, you also lose your right to privacy as to these pictures.
Finally, if these are simply nude, non-sexual poses, there probably isn't any criminal law you'd be violating. However, if they are sexual photos - such as masturbation, erections, playing with "toys" or with others, they may be highly offensive to the person developing or printing the film. In that case, you could be violating your state's criminal obscenity laws.
I'd seriously consider some other options, like an inexpensive digital camera. In addition to the ease with which you can email these, you can alter the contents, such as disguising your face, and lessen your embarrassment when these suddenly pop up on your mother's computer.
6.2 Is Internet porn illegal? After surfing the mature men pictures I go to Internet Options, click on Delete Files and then Clear History. Is what I previously looked at completely off the hard drive? Is downloading internet porn an unlawful act?
A: Downloading porn in the US is only illegal if it is obscene or if it is child pornography. Obscenity is a matter of local standards - the famous Supreme Court statement of "I know it when I see it" shows how hard it is to define this standard. As long as there is pornography, Congress and the states will try to outlaw it and these laws in the US will be struck down as unconstitutional. I wouldn't worry about porn on your hard drive unless there's someone you don't want to see it, like your wife, or if it's child porn.
Child porn is completely different and defined by federal law. It is illegal to make it, disseminate it, sell it, view it, depict it in any way and possess it. The problem here is that the Internet is connected to a lot of countries that don't share our laws or our views about sexuality, including the age of consent. Thus, you can find pictures of teens on the 'net that are legal in one country and illegal in the US. If you're downloading photos, be sure you know the models are of legal age in the US.
7.1 Can I be denied housing because I'm Gay? My landlord wants to throw me out. I have been renting the house I live in for three years now. I'm having a very serious problem with the new manager. He makes comments about me being gay and told me that he prefers no one gay rent an apartment or house. I told him I have been here for three years and I enjoy living here. Today I got a letter from him stating that my rent is going from $525.00 monthly to $775.00 monthly. I was just laid off and I'm trying to find a new job. The new manager told me I will have to start paying this amount in rent or he will have me thrown out. I truly believe that he is doing this to harass me and get me to move. I'm very scared. I'm so afraid if I try to find something else, I won't be able to because I have no job. Please, any feedback would be great.
A: Unfortunately, North Carolina, like many US states has no law prohibiting discrimination on the basis of sexual orientation. That means your manager can pretty much get away with what he's doing, which is trying to force you out of your home.
You might have an option, though, which is your contract. Both you and your landlord are bound by your real estate contract if you have one. Did you sign a contract anytime recently? If so, see if there is any kind of rental increase clause in there. If you signed a contract when you moved in three years ago, it was probably for some period like a year. Most of these contracts will have an automatic renewal clause, usually month-to-month, until you sign a new contract. But sometimes these contracts will renew for another year and, once again, the contract controls. It won't keep your manager from getting rid of you eventually, but it could buy you some time to find another place.
As for finding a new place, don't be scared. You might have to get a roommate, but if your credit is good and you've paid your rent on time in the past, you're an ideal tenant even if you're unemployed. You might have to be a little more creative looking for an apartment. Good luck.
7.2 How can I protect myself from harassment by neighbors? I am being harassed by my neighbors. I am a resident of Los Angeles County in the state of California. I reside alone in a single family home on a residential street. My neighbors immediately west of me have discovered I am gay and they have proceeding to name call and to make childish noises, etc. On one occasion immediately following a confrontation I called the local police department and the officer on duty essentially discouraged me from documenting the incident. My concern is whether this situation will escalate and become worse. Typically, I am a low profile individual. I come and I go and I stay somewhat to myself. I am and have been friendly with a few neighbors for over 15-years, but I have not discussed the situation with those neighbors. What suggestions do you have for me. Do you suggest I ignore the problem neighbors completely or do you suggest I take other steps?
A: If their harassment doesn't rise above the level of name calling and "childish noises," you're probably better off ignoring them if you can do so. If, however, they go beyond this boorish behavior and begin threatening you or your property, then you'll have to take some legal action. However, when you take legal action against a neighbor, these things begin to escalate fast and get real ugly with, generally, no resolution that anyone is happy with. Let me illustrate this with an example from my own experience.
Quite a few years ago, I lived with a partner in Alexandria, Virginia. Two kids - real punks - figured out we were gay and began verbally assaulting us. Their harassment went way beyond what you are experiencing and included spray-painting the word "fags" on trees with arrows pointing at our house, throwing rocks through windows, shooting out a window with a BB gun, and other types of late-night vandalism. I was much younger and feistier and confronted them, but they were under 18 and I was over 21 so, if I hit them, I would have been in trouble. The police were sympathetic but no help - these kids had juvenile records but whenever they were arrested, the judge would give them a stern warning and let them go. It was a nightmare.
Finally, I introduced myself to the other neighbors and organized a neighborhood watch. This helped considerably because these kids were trouble to everyone and not just us and now they knew they were being watched by lots of people and not just us. They began to feel defensive and, at one point, even accused US of picking on THEM! More importantly, we began to feel we had friends in the neighborhood and this gave us an emotional boost knowing that most people in the neighborhood liked us and that these kids were the exception and not the rule. Ultimately, one kid moved out of his parent's house and the other was killed while driving drunk so the problem went away. But it was a horrible experience that lasted two years and you have my deepest sympathy.
If things escalate - that is, if they threaten you physically or do any damage to your property - call the police and call the local gay and lesbian community center for some resources to help deal with the problem. You have a right to protect yourself and your property and there are legal remedies if things get bad, such as restraining orders and civil penalties. Otherwise, ignore them and fight the urge to yell back since they're looking for you to react in some way. I'd also get to know your other neighbors better - maybe organize a block party or something like that. You may find they can't stand these nasty neighbors either and you'll acquire some allies.
I'd also check to see if these nasty neighbors are renting the place. If they are, you might be able to complain to the landlord. He or she may not be able to evict them but they may not renew their lease, particularly if they think they're a problem tenant. Good luck.
7.3 Can I be evicted for violating an apartment rule? I live in a small town near Ann Arbor and, after I got into fitness seriously, I started sunning in the miniscule yard out back. A couple of years ago the landlord told me to stop wearing speedos in the apartment area; he actually wrote this in a letter. At the end of May they refused to renew lease with me after 5.5 years here. There doesn't seem to be any other reason other than the speedo thing. I refused to move out and forced them to try to evict me. Then when I tried to get another apartment here, the potential landlord told me they weren't going to rent to me and won't discuss anything.
I'm going to pro se (represent myself) this to the court based on my first amendment rights and some blatant discrimination. Is it LEGAL to base a non-renewal of a lease on an ILLEGAL basis. When it's not illegal, is a tenant who pays his rent and is no trouble entitled to be reasonably secure in their 'rented' premises, and that would include freedom from what I'm going through?
A: In my introduction to this section, I mentioned that there were some things for which there were no legal remedies. This is one of those things. Although it isn't legal to discriminate against someone for an illegal reason, such as race, there are many legal reasons that can be the basis for non-renewal or a refusal to rent. Your current landlord asked you, in writing, not to wear speedos in the apartment area; you refused to comply, therefore he is within his rights to refuse to renew the lease when it terminated.
Unfortunately, you've made the situation worse for yourself by forcing him to evict you. This eviction is probably on your credit report and, frankly, it's a legitimate reason for a new landlord o refuse to rent to you - even though you're probably a great tenant. Going to court, particularly pro se, isn't going to do anything but make you appear even more of a difficult tenant and thus make it harder to find a new apartment. In addition, the judge will dismiss your case the first time the defendant makes a motion to dismiss. That might not seem so bad but if the judge thinks you brought a frivolous case, he or she can award attorneys fees to the defendant, and that can run a hefty amount.
I think you need to back down and concentrate on finding an apartment where they don't care if you walk around or sun in your speedos.
7.4 Can a transgendered person legally marry and what gender would s/he be? Can a SHE-MALE legally marry? What would be it's sex - male or female?
A: Interesting question. I was just at a conference and a transgendered lawyer friend of mine, Phyllis Frye, was telling us that the laws are in a state of flux. There have been several attempts to get a marriage license by couples where one partner is transgendered and it's really getting local authorities confused because (a) all US states limit marriage to male-female couples and (b) many states allow a transgendered person who has had reassignment surgery to be legally declared the assigned sex. Some activists, such as Phyllis, are pushing this issue as a way to get the marriage laws changed. I highly recommend Phyllis' web site, http://transgenderlegal.com.
If, by a she-male, you mean someone who has not yet undergone full gender reassignment, then that person is legally classified as male or female depending upon what is on their birth certificate. Once the person has undergone final surgery for gender reassignment, most states will allow them to change their sexual gender on documents including driver's licenses, birth certificates, etc. At that point, the laws regarding marriage become unclear.
7.5 Can I get my military discharge changed? After serving three years and six months in the US Air Force 1963-1967, I was discharged with an "Other Than Honorable" discharge for being involved sexually with another gay service member. Up to that time, my record was spotless. I was essentially "railroaded" out. It was the age old story of being inept and ignorant, scared to death, and threatened with imprisonment if I did not sign the documents placed before me, all of which they took full advantage.
Using the VA medical services would be of great benefit to me if I were allowed to do so. I can't help but wonder what are my chances of protesting that and winning back my GI privileges. Your comments would be greatly appreciated by me and doubtless other ex-GI's.
A:. Back in the 70's and 80's, when I lived in the Washington, DC, I got to know so many servicemen and women who were forced to live a double life because they were gay or lesbian. These were often officers who had honorably served their country but could have been dishonorably discharged at any time if they were found out. I am so sorry that you were one of the victims of the military's homophobia - because that's all that has kept gays and lesbians from serving openly in the military, as they now do in Canada, Israel, the UK, and all other civilized countries.
Had you been discharged in recent years, you might have been discharged honorably - although still discharged. Your treatment was the norm, however, for many years and you are not alone. Unfortunately, I don't know of any procedure to retroactively change your discharge. There are a number of GLBT veterans' organizations, such as AVER, but I haven't found any that are fighting for people in your situation. I'm sorry I can't be more helpful or hopeful.
7.6 What are my rights regarding unemployment?I was discharged from my position due to internal changes in the accounting department. I applied for unemployment and I started to receive my payments, however I received a letter from the Department of Labor that my company reported misconduct from my part therefore they are holding my future payments till they investigate.
I kept corresponding with a coworker and two months later, he told me that some how the girl that is using my old computer found a naked picture of me on my computer. I don't know how that happened. Anyway my assumption is that my ex-employer is using this as a reason to stop my unemployment benefits, however the finding of this picture didn't happen till 2 months after I left. Again the reason of my discharge had nothing to do with this, as I said I know about this because my buddy told me otherwise I wouldn't know.
Is my ex-employer in the right to use this as a reason for stopping my benefits?
A: Oops! I bet you'll never put a naked picture of yourself on a work computer again. Unfortunately, you've done something particularly worrisome to employers since it could lead to a charge of sexual harassment against your employer by the woman who stumbled upon your picture. At the very least, having this picture on your computer could have amounted to misconduct if it was in violation of a work place policy, such as an acceptable use policy.
However, that isn't why you were let go and your employer appears to be using this as an excuse to deny your unemployment claim. In most states, you can be denied unemployment benefits if you are discharged for cause or if you quit. If you were simply laid off or let go because of a reorganization, you should not be denied unemployment and the fact that they discovered misconduct later doesn't change the reason you were discharged. What may complicate things for you is whether you can prove that you were laid off and not fired for misconduct, as they now claim.
Do you have a letter or any written memorandum (including email) detailing the reason you were let go? Many employers will give you such a letter when you are laid off stating the reason you were let go. This is your best evidence. Second best would be statements from others who were laid off at the same time and for the same reason, particularly if you were all brought together in one room, as often happens during a lay-off. Other information would be press releases or other public statements about lay-offs or reorganizations. Even if they don't mention you specifically, they can help support your position, particularly if there was an announcement at about the same time you were let go.
You have a right to a hearing on the denial of your claim. Read all correspondence from the unemployment office to make sure you don't lose this opportunity and be sure to respond in a timely fashion to all notices, in writing. I recommend you send all correspondence via certified mail with a return receipt requested. It costs about $4 dollars more than regular postage but it proves that you sent the letter by a specific date and that it was received by them.
Prior to your hearing, you will need to send copies of all documents you have that support your position to the hearing officer. You should also send a copy to your employer's personnel department. The hearing will most likely be in the form of a conference call with the hearing officer, a representative from your ex-employer and you on the telephone. Your position in all of this is that you were let go for the reasons given when you were laid off and not for any other reason discovered after the fact.
The hearing officer will let you and your employer state your positions and will ask questions of both sides. Afterward, the officer will make a decision and inform you both in writing. If the hearing does not go in your favor, you will be given information about any further appeal rights that you have.
You could probably handle all this yourself or, alternatively, you could consult with an employment attorney, depending upon your financial situation. Many attorneys will offer a limited consultation for an hourly fee. Don't forget to check with your county bar association. Many of these have free legal clinics for people with limited income. If you meet with an attorney, be sure to bring all your correspondence and related documents. Good luck.
This is probably a good occasion to remind Apollo Network men that nothing you do on your computer at work is private, including your email. The US Supreme Court has ruled that you have a low expectation of privacy at work. Thus, your employer can monitor your telephone calls, search your desk, examine your computer hard drive, read your email, listen to your voice mail, etc. Don't forget that electronic data is frequently recoverable even if it's deleted. The bottom line is if you're doing something you don't want your boss to know about, don't do it at work.
7.7 What does it mean that homosexuality is decriminalized? I'll be visiting Ireland in August. While surfing the internet, I came across an article saying that "Homosexuality" in Ireland had been "decriminalized" Does this mean that sodomy is OK? How would the Houston case relate to this, i.e., if the Supreme Court rules in favor of the plaintiffs? Does this mean that homosexuality will be "decriminalized?
A: Yes, Ireland no longer has laws on the book criminalizing homosexuality, and that would include legalizing sodomy. They were required to do this as part of the effort to standardize laws throughout the European Union.
Decisions of the U.S. Supreme Court have no effect on the laws of any other country. The favorable ruling in this case means, however, that homosexual conduct, per se, may no longer be made illegal in the US. In effect, homosexuality in the U.S. is now decriminalized. Many people also feel it will help do away with other laws restricting the rights of gays and lesbians in the US, since the sodomy laws were often used to justify such restrictions.
8.1 Do I have to tell my partner that I am HIV+? What are the existing laws about HIV+ individuals who want to have sex? Do they have to inform their partner that they are HIV+?
A:. In order to get AIDS funds under the Ryan White AIDS Act of 1990, states had to show that they had criminal laws that adequately prosecuted HIV-infected persons who, knowing they were infected, donated blood, sperm or milk, engaged in sex, or shared needles, with an intent to expose others to HIV. Because of this law, most states now have laws that cover this situation. None, to my knowledge, are specifically directed at gays or bisexuals.
Most of these laws are vague, often outlawing activity that doesn't transmit HIV, such as kissing or mutual masturbation, and most are probably unconstitutional. As a result, there have been only a handful of prosecutions and even fewer convictions, in only the most egregious cases, such as a man who had repeated, unprotected sex and who had been warned repeatedly by his counselor. It is a complete defense, in most states, that the defendant informed the other person of his HIV status prior to having sex.
The US military has been more aggressive about prosecuting service members who have unprotected sex when they are HIV+. Service members are tested frequently; those testing positive can be issued safe sex orders or otherwise restricted and there have been court martials for violating these orders. There have also been convictions for assault and for conduct prejudicial to good order.
In addition to criminal law, there have been civil cases filed and won by individuals who were infected by someone who did not inform them of their HIV status. Some of you may remember the case filed against the Rock Hunter estate, where the jury found that Hunter had engaged in unprotected sex while lying about his HIV status.
The bottom line is this: if you know you are HIV+, you must inform your partner so he or she can make an informed decision.
8.2 How can I help my lover get his worker's compensation prescriptions? My lover has a problem with the local pharmacy. He is on workers comp and the case manager has screwed up his prescription benefits by not paying the local drug store. As a result, the drug store has stopped letting him get his drugs there, even though the bill has been paid. A lot of his medications are needed fast and it makes him quite worried. Is there a way to fix the problem so he can get his meds locally? Anything you can tell me would be helpful.
A: There are several things I would suggest you do. First, is there another local pharmacy that will accept workers comp benefits? If so, take your partner there and get him set up with that pharmacy. A lot of supermarkets now have pharmacies so you may find you have several convenient options.
Second, if the problem was caused by the case manager, then the workers comp office should help clear up the mess. Typically, these benefit offices are understaffed and overworked. To get your partner taken care of, remember the old adage, "the squeaky wheel gets the oil". Ask the case manager for a letter explaining the problem and asking the pharmacy to reinstate your partner's benefits. If he or she won't (or can't) provide such a letter, then escalate your request to the case manager's supervisor. Many state agencies also have a client advocate who's job it is to sort out problems and get them resolved. Track down this person and let them know the problem. If the problem is the case manager, then ask for another case manager.
In short, your partner needs to assert himself and demand proper assistance. When you make these demands, he should be polite but firm. After all, workers compensation in the US is a form of insurance and not a charity, and your partner is within his rights to demand proper service. You'll have to get very involved if your partner is either too incapacitated or too shy to assert his rights and, as a result, the agency may require you to produce a power of attorney. If they do, ask them if they have a form for this and, if they don't, ask them whether they need a medical power of attorney, a financial power of attorney, or both. You can either get a local attorney to prepare these for you or get forms for these at Nolo Press' web site, http://www.nolo.com.
If you can't get anywhere by yourself, you'll need to work with an attorney. I'd call your local (city, county or state) bar association to see if they have a legal assistance hotline. Many places have volunteer lawyers who work with people who could not otherwise afford an attorney. Good luck.
8.3 Can I file suit for discrimination based on depression? I live and work in Missouri, which is a right to work state, and I am employed by registered non-profit agency that works closely with state government. I have worked for my agency for years but a year ago, I got a new boss. Since she came on board, I have had several personal setbacks, including the breakup of my 9-year relationship. These events caused me to fall into a serious depression, for which I sought treatment and was prescribed various medications. These have a side effect of making me lethargic, which has been affecting my work.
As a result, I was let go from my job. The agency doesn't have a policy or procedures manual but shouldn't there have been a reprimand and a time line given? Isn't depression a disability or should it be treated like they would a cancer victim by offering some medical leave policy? They keep referring to the Older Workers' Benefit Protection Act, which discusses release of disability claims and will give me severance pay for a month. That doesn't give me a lot of time to find a new position similar to what I'm making now. I haven't signed anything yet.
Do I have any right to demand medical leave or more severance based on my depression or my age?
A: The fact that Missouri is a right-to-work state (which means you can be fired for any reason or for no reason) doesn't mean you have no rights. There are a number of state and federal employment laws that may be applicable to your case, and an employer cannot fire you for reasons that are forbidden under these laws, such as your race or religion. I can think of two that may be applicable in your situation: the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Unfortunately, sexual orientation and gender identity are two categories that are generally not covered, except in some states and local ordinances. There may be others as well.
The ADA does cover individuals with mental as well as physical impairments. This includes major depression, such as you have described and for which you are being treated. In order to be covered, courts have ruled, the physical or mental impairment must interfere with a major life activity, such as work. From what you've told me, that appears to be the case here.
The ADA requires an employer to provide "reasonable accommodations" for your impairment in order to However, in order to be provided with a reasonable accommodation, you must tell your employer about the impairment - you can't make them guess and then fault them for not accommodating you. However, an employer doesn't necessarily have to relax standards for disabled employees. I recommend you look at the US Equal Employment Opportunity Committee (EEOC) ADA Primer at http://www.eeoc.gov/ada/adahandbook.html for additional information.
It also appears to me that they may be concerned about violating the Age Discrimination in Employment Act (ADEA), which is designed to prevent discrimination against people of 40 and up. Although you didn't mention your age, the fact that they mentioned the Older Workers' Benefit Protection Act (OWBPA), which amended the ADEA, indicates that you are in the protected category.
Finally, you may have some rights under the Family Medical Leave Act (FMLA) which allows you to take up to 12 weeks of unpaid leave if you have a serious health problem. To be covered, however, your employer must have at least 50 or more employees during the prior 20 weeks, and you must have worked at least 12 months and at least 1250 hours over the last 12 months.
The first step you should take in any case is to go to the nearest Equal Employment Opportunity Office (EEOC) and see if you can file a complaint. In some cases, the EEOC will take the case on your behalf. In most cases, however, the EEOC will investigate your complaint and then issue a "Right to File" letter, indicating that you are eligible to privately pursue your case. Often times, you will end up in mediation with your employer. To find your nearest office, go to http://www.eeoc.gov/offices.html. For information on how to file, look at the EEOC brochure, "How to File" at http://www.eeoc.gov/facts/howtofil.html.
You could also consult with an employment lawyer, although in cases involving violations of federal law, such as the ADA or the ADEA, a lawyer will usually want to see the Right To File letter from the EEOC. In any case, don't wait to pursue your rights as quickly as possible, since many of these laws have time limits, usually 180 days since the allegedly discriminatory act.
9.1 Should I declare bankruptcy? My partner and I foolishly ran up my credit cards last year thinking we would be together forever and he would help to pay the bills. Although we had fun, it was incredibly stupid on my part since he has left me and the bills. The total amount of debt is around $25,000. Please, no lectures. Anyway, the companies are looking for their monies which I can't possible get together. And of course my credit rating has taken a nosedive. I don't own a home or property and basically live from paycheck to paycheck. Is declaring bankruptcy a good option? I have a little knowledge of the consequences, but see no other option. Also, how difficult is it to declare bankruptcy?
I am 66 and very much in debt as far as Credit Cards. I have ceased using them for some time now but I will NEVER be able to pay them off. I am working full time, have a great job and also receive Social Security and a State Pension. I am worried what I will do if I become ill in the future and unable to work - I could NOT make any payments on those high Credit Cards. This situation is my fault and I take full responsibility and feel very stupid to have gotten myself in this predicament. Could I file bankruptcy? Do you have any advice or feedback to give me?
A:Bankruptcy is a chance for you to get the creditors off your back and reduce or even get rid of your debt. It's appropriate when you have more debts than you have assets to pay those debts. The down side is that it is a big black mark on your credit record, where it stays for 10 years, and you will find it difficult or impossible to get credit. On the other hand, if you're contemplating bankruptcy, your credit rating is probably only slightly better than Enron's and, in some cases, bankruptcy can improve your rating since most, if not all or your debts would be dismissed.
For individuals, there are two kinds of bankruptcy - Chapter 7 or liquidation, and Chapter 13, also called a "wage-earner plan". Chapter 13 is mostly for use by individuals who have a lot of secured debt - mortgages and related loans - that would otherwise be foreclosed upon and lets you set up a repayment plan. Most people file Chapter 7, which completely discharges all remaining unsecured debt. In either case, certain kinds of debts, such as student loans, taxes, alimony and support, are not dischargeable so if these are what you owe, bankruptcy isn't going to help.
Certain property is exempt from a bankruptcy proceeding and you can keep this property. Although bankruptcy is a federal law and you'll be filing in federal court, you can opt for either the federal exemptions or your state exemptions. In states where the exemption is low, you'll want to go with the federal exemptions. On the other hand, in states like Texas or Florida, your exemptions are much higher and may even exempt your home.
The process begins when you file a bankruptcy petition with the federal bankruptcy court. When you file personal bankruptcy, your creditors have to get in line based on a priority defined by the bankruptcy law and any legal proceedings and collection attempts go on hold (called a "stay"). The court will require a list of all your assets and all your debts, including the names and addresses of all creditors. Any assets in excess of your exemptions will be distributed to your unsecured creditors on an equal basis and, in Chapter 7, that's all they get.
I don't recommend you file without the help of a bankruptcy attorney. Bankruptcy law is complicated as are the proceedings, and it takes someone who does this on a regular basis to keep up with all the filings that are required. Besides, most of your creditors have attorneys representing them and, no matter how nice they are, they are NOT on your side. A good bankruptcy lawyer will tell you up front what the fees will be and will require you to pay them before you file. You will also be required to pay filing fees and some other court costs. Avoid anyone who isn't an attorney - there are plenty who will claim they can walk you through the process but if they screw up your case, you can't file malpractice.
You shouldn't take bankruptcy lightly and it certainly isn't any reason to run up your credit cards and other unsecured debt. You have to keep on top of the case, which means cooperating with the court and your attorney, if you have one, otherwise it can be dismissed and you're back to where you were. Once you've filed, in most cases, you cannot file again until 6 years have expired from the previous filing.
P.S. I've made my share of stupid mistakes, so you won't get any lectures from me. And don't beat yourselves up because it won't help you deal with your financial problems and you're not the first people in these predicaments.
9.2 Can I legally dodge my creditors? My creditors are trying to take me to court. Can I dodge them? I've run about 100,000 dollars in debt with credit cards. I own my own home, which I owe $30,000 on and own my own business. They've tried to give me a subpoena for civil court, but I always dodge them,what shall I do?
A:. Dodging a process server isn't going to keep them from doing anything. Eventually, they'll get a default judgment and then they can execute that against your property, which can be seized and sold at auction. The only way to stop this civil case from proceeding is for you to file bankruptcy. Once you've filed, all other legal proceedings are stayed until the bankruptcy court dismisses or closes your case. If you want to keep your house, or at least some of your equity in it, you should RUN not walk to the nearest bankruptcy attorney.
9.3 Can our jointly-held home be sold to settle my partner's debts? Concern - If and when my partner dies, can our home (the deed does state "joint ownership with right of survivorship") be claimed/sold to settle his debts ? Background information -The only property that my partner and I own jointly is our home. The deed does state "joint ownership with right of survivorship". He has substantial credit card (in his name only) debt. He has co-signed loans for his two children. He does have a will (standard template off the internet that has been notarized). The will leaves all his personal property to his family members. Property of significant value that he owns is: a Triumph, a truck, and a motorboat. I appreciate your time and hope you will put my mind at ease.
A: I can't speak for Illinois law but I would certainly be concerned with all the debt he has. Of even more concern is the fact that a creditor doesn't have to wait for the debtor to die if the debtor gets behind on the debt. They can (and will) get a judgment which, if executed, could force him into bankruptcy along with his share of your house. See the discussion above regarding rights of contribution and debts against a joint tenant.
As you can see from this month's article, you each have an undivided one-half share of the house, unless your agreement or deed states otherwise. If you sold the house today, you would each be entitled to one-half of the proceeds with a right of contribution against the other.
Exactly how you decide to handle sharing the equity is up to you. Most people (except accountants) don't like to go into this level of detail since it often leads to those unwinnable "you don't love me" or "you're planning on leaving me" kind of arguments. But in your case, I think it's important since your partner is accumulating unsecured debt that endangers your equity in the house. Worse, he's cosigned some loans for his kids and their creditors would look to him to pay the debt if they get behind or stop paying the debts.
9.4 What are my options other than bankruptcy? I decided not to file bankruptcy but I am in credit card debt due to my "goodness" to others and my own mistakes. I accept all of that as my own responsibility. I have ceased using the credit cards but there is no way in the world that I will ever live long enough to pay off my debts. I am presently employed with a very good job. I also receive a pension and social security but even with these checks, I cannot pay off these high interests credit cards. I am fearful of what could happen if I lost my present job or became disabled. If I could not pay these credit card debts, would my home be taken away from me? Would I be put out on the streets? What would be taken away from me? What about bill collectors? I have 3 beautiful dogs and several cats. How could I take care of them? I have no living relatives and no one to turn to. Would I have to have all my pets put to sleep? I am so frantic that I can hardly sleep at night. I have thought of going to my local Consumer Credit Counselling Center and see if they could get my interest lowered along with decreasing the size of my monthly payments on those credit cards so that I may have more money monthly. Right now I am feeling like a total loser.
A: Well, first of all, you're not a loser and you're not alone in having way too much credit card debt. I dare say if Ron did a poll on this question, you'd find yourself with a great deal of company. That you have resolved to do something about it is commendable and responsible on your part. Just don't let that responsibility overwhelm you.
I don't usually recommend any of these credit counselling agencies - they don't generally do anything you can't do yourself and they usually charge some fees. You can and should call your card companies and ask them for a better interest rate, particularly if you have kept up the payments. Often, they will reduce rates for their better customers - and why shouldn't they? After all, the federal funds rate - the interest rate banks pay to borrow money from the Federal Reserve - is below 1% and the prime rate - the rate banks loan money to the preferred customers - is 4.75%. Credit cards that are locked in at 18 - 21% interest are earning 13.25% interest or better for the card issuers, which, to my mind is a scandal! Even with a high default rate, banks earn a TON of money on credit cards.
So, first, get a handle on your spending and cut out using your cards. If you don't want to cut them up, leave them at home. And that goes for your debit card, if you have one. Second, make sure you are paying more than the minimum monthly payment. If you don't, you won't ever pay them off. And make sure you pay them on time - many cards will hit you with a $25 to $35 late fee if you're even 1 day late. Third, call and ask for a better interest rate. The worst they'll say is no. Finally, put something away in savings each month before you pay anyone else. You need to rebuild your nest egg in case something unexpected happens.
Now, try not to lose sleep or worry about your pets. Remember, the worst that can happen to you is that you'll have to file bankruptcy after all. Unless you live in a state like Texas or Florida, where your house and other assets are exempted, you may need to file Chapter 13 (repayment) rather than Chapter 7 (full discharge). So, let's say you live in some other state and you own a house and maybe have a mortgage. In that case, you would probably file Chapter 13, which requires you to submit a repayment plan in which you would agree to repay some, but not all, of your unsecured debt. If, on the other hand, you don't own a lot of non-exempt property, Chapter 7 might be a better option. Furthermore, filing bankruptcy causes an immediate stay of any other legal proceedings, including attempts by bill collectors to collect any debts. Bankruptcy shouldn't be your first choice, but it's not the end of the world and you shouldn't destroy your physical or mental health simply because you are a debtor. Good luck.
9.5 What are my rights ater I file bankruptcy? Do you know of any web site that I can get information about my rights once I've declared bankruptcy? Particularly, I would be looking for information about how I can repair my credit history and/or remove the bankruptcy notice from my credit report.
A: I really recommend Nolo Press (http://www.nolo.com). They have great information on a variety of legal topics. Now, the bad news - you will not be able to remove the bankruptcy notice from your credit report. Bankruptcy will remain on your credit report for 10 years; most other information will stay there for only seven years. There isn't anything you can do except make sure the information is accurate, so check your credit reports at least once a year.
Just one point that I want to make on these so-called "credit repair" services. I know you've seen them posted on every telephone pole in town. Folks, save your money; most won't and can't do anything you couldn't do yourself. They are simply a waste of money and often fraudulent. Read Nolo's information on this area.
9.6 Is a pension exempt from bankruptcy? I will be getting a New York State pension and also have deferred compensation with them ( not a 401k as in private industry, but am not sure how it is different.) I have been told that I can take out my money, anyway I want at age 55, my retirement age, without a penalty.
I would like to know if the pension and the investment plan, the latter administered by the state's agent, are exempt from personal bankruptcy. I have paid into both, with the state only adding to the pension, not the deferred compensation.
A: If the pension is qualified under ERISA, it is fully exempt from bankruptcy. I'm not sure about the deferred compensation; I suspect it may be fully exempt but it may be treated as wages, which are 75% exempted. I'd call the New York State pension board and ask them.
10.1 Can I be required to pay an employee's bad check? I gave an employee an advance on his pay ($800 to be exact). He took the check to a currency exchange and cashed it immediately. He then did not show up to work or call in sick for that matter. After 3 days of being a "no-show" I cancelled the $800 check which had not cleared my bank yet. After a week or two the currency exchange called me requesting the money to which I denied payment. Now they have passed it to their lawyer requesting payment by me or threatening legal action. They said that the check I issued was in good faith and that I was responsible for it, not the person who cashed it and is now un-trackable. I understand why they are coming after me (because I am the easy target), but am I legally responsible for this check? Shouldn't they be trying to find the guy that cashed it then skipped on me too? Your help is greatly appreciated.
A:I'm afraid you're stuck with a bad debt and you'll have to pay the currency exchange. You wrote a check which this guy legitimately cashed. The fact that this thief obtained the check from you under false pretenses doesn't change the obligation to the currency exchange. It would be different had he stolen a check from you - then, the bank would be obligated to pay the check if you promptly reported it as stolen. I'd pay the currency exchange sooner, rather than later so you don't incur any additional fees, such as attorney fees.
You might be able to report it to the police as criminal fraud, but I doubt they'd pursue the matter. If the guy ever shows up, you could sue him in small claims court to recover the funds but I wouldn't bet on getting paid. Did the employee do any work for you before you gave him the advance? If so, you're entitled to deduct the $800 from any pay you owe him. Sorry you got taken by this thief but bless you for being a kind boss.
10.2 How do I set up a business partnership with my life partner? My lover and me are also business partners in a photography business. What paper work do we need to get it in both our names or to make it both ours?
A: You should be able to set this all up with a formal, written partnership agreement. There is no set form for this - it's whatever you and he decide. Some of the things you need to include, however, are percentage of ownership, contribution to the business (whether financial or "sweat equity"), what happens if you break up, etc. What I would do is draw up a basic agreement then have a local attorney go over this and make sure all the details are in place. A good starting place is Nolo Press' web site as well as its series of books on legal issues, which are available at most book stores. Don't rely on Nolo completely, but don't be afraid to educate yourself, either.
What happens if you don't have a partnership agreement? The business relationship is governed by your state's partnership laws, which may not give you the result you want. It's so easy - maybe too easy - to think you and he have this all worked out in your heads and to never get around to putting this on paper. Get this formalized, and make sure you file a copy with your attorney.
10.3 Am I responsible for environmental problems caused by a previous property owner? I have a piece of property that I was going to lease to someone. The building is actually two buildings joined together - the front building was a gas station in the 70s and the gas tanks are still in the ground. When the other party's lawyer got the reports, she advised them not to sign the lease because of the contamination from the gas station, which she feels could make them liable for any contamination on my property. Is this true? It sure doesn't make sense to me - the pollution isn't coming from me. Could you tell me if there is a way to get my ground tested free or inexpensively? It seems that it will cost me about $5,000 to get it tested.
A: It's been a while since I've studied environmental law but I think you're stuck with a problematic piece of property. The gas tanks are a potential source of contamination of the entire property and, as the current owner, you're on the hook. Can you track down the prior owners? You may have a right to recover any damages you suffer from the prior owners. The problem is that, especially with businesses, there often isn't anyone still in business that you can go after. Furthermore, you can't sell your property now without disclosing the potential contamination because you are already on notice about it.
You really need to talk to a real estate attorney with experience in environmental law. Unfortunately, there probably isn't a cheap solution to your problem, although there may be some state and/or federal grant money available if environmental remediation is necessary.
10.4 Can I copy and sell someone else's written work? I have a booklet compiled by someone else. It does not have a copyright on it and was printed by a national dog breed club, again nothing that states that it was copyrighted. Can I copy it and sell it legally?
A: No, probably not. Just because something doesn't have a copyright notice on it, doesn't mean it doesn't have a copyright. It used to be the law in the US that you had to register your copyright and place a notice on the work (usually the symbol ©), but this is no longer a requirement. Now, copyright attaches as soon as the work is fixed in some form. For example, the contents of this web page are copyrighted from the moment I write them. The safest assumption, unless you know absolutely otherwise, is that any creative work has a copyright and you may not legally copy it. There are some exceptions and there are some valid excuses, such as fair use, but in general it is a copyright infringement to duplicate or create derivative works from someone else's copyrighted work. If you have any question, then be sure to check with a copyright attorney.
10.5 Can I protect a pornographic film I'm making? I am producing a pornographic film on dvd with two older partners. Our identities will be concealed because we are wearing mask throughout the entire film, what legalities do I have to be aware of and abide by to prevent the film from running into any type of illegal litigation before it is completely finished and produced. Furthermore, I do not want my DVD to be pirated by the ruthless asians that illegally bootleg other peoples copyrighted material. Should I start an S-Corporation or what type of corporation should I file with the federal government. Also, what is the best type of disclaimer to print on the DVD itself, not only to try to prevent it from being bootlegged or pirated, but to state specifically there is no money back after the point of purchase. Finally, I am in the state of Florida, so what is the easiest way to copyright my work; can I do it online, if so, how? If you can hook me up, I'll send you a free copy of my DVD once it is finished and completed. Much thanxxx.
A: What a lot of interesting questions you have! First, since you are filming in Florida, you may be violating the state's sodomy laws. While I am certain lots of people do this on a regular basis, I'm not sure creating video evidence is a good idea. I would certainly avoid filming anything that would identify the location as Florida. Second, you'll need releases from your models. These can be pretty straight-forward but should not include any reference to sexual acts. There should also be a statement to the effect that the model is over the age of 18, even though this fact may be obvious.
Third, you will find it difficult to prevent piracy but there are a few things you should consider. Your film is protected by copyright without any special steps on your part, but you will need to register the copyright in order to enforce your rights. To do this, you file a signed form PA, a copy of the DVD, a written description of the contents of the picture, and a filing fee of $30 with the Register of Copyrights at the US Library of Congress. You can do this yourself - see Circular 45 available from the Copyright Office web site at http://www.copyright.gov. You are not required to put any kind of disclaimer on the disk or accompanying case, but you should put a copyright notice on both. Take a look at the disclaimers on any pornographic DVD and do something similar. You can encrypt a DVD; a production company can help you with this. Although this won't prevent someone from using a program to decrypt the contents, it will at least cut down on casual copying. You might also want to approach some of the companies that produce porn to see if you can cut a distribution deal.
Finally, I don't know what the best structure for organizing your enterprise would be. You could set up a limited liability corporation, which would insulate you from some, but not all personal liability. However, any time you incorporate, there will be fees and taxes that will need to be paid as well as annual reporting requirements. You may not want something this complex if this is a one-shot deal. For a single project, you may want to consider a simple partnership. For this, you'd simply need to draw up a partnership agreement. There are two drawbacks to this, however. First, there is no personal liability protection. Second, you can't retain profits from year to year in a partnership; instead, you have to distribute them annually to the partners. I hope profits are your biggest problem! Good luck.
10.6 How can I collect payment for some work I did? I am unemployed and was contacted over the Internet by this guy who fixes fitness equipment. According to our agreement, I was to get $40 per call and no benefits. At the end of the year, he was supposed to issue me a 1099.
He owes me 1080.00 and I have to travel to Scranton Pa from Butler Pa to sue him for my pay because the state can't do anything about it since no taxes were taken out and no time cards. I guess I was a self contractor. I have a list of all the customers I went to and one receipt that he sent to me for pay what all do I need to present in court to prove my case?
A: You are correct, you are most likely an independent contractor so the state labor office will be unable to help you. However, you do have some recourse and, since you have some time on your hands, you should be able to take some steps yourself.
The first thing I would do is send him a formal bill with a demand for payment within 30 days. Send this by certified mail, return receipt requested, and send a second copy by regular mail just in case he refuses the certified letter. This letter puts him on notice and he may just pay the bill.
If that fails, you'll have to consider two things: can you get a judgment against him if you sue him and can you collect the judgment if you win. Analyze the last question first, since it doesn't make sense to spend a lot of time pursuing this guy in court if he's got no assets you can collect. Look to see if he owns real estate or other property - you should be able to search his county court records online for this information. He probably also has a checking account and maybe savings accounts but these are harder to track down these days. Finally, do you know if he has a job? If so, you may be able to garnish his wages.
If you think he has something to collect, then look at your evidence. You contacted him over the Internet so print out all your emails and his web pages (if any). If you don't have a written, signed contract with this guy, the correspondence between you may be enough to establish a contract. Gather up everything you've received from him because this is your major proof.
Then, go down to your local law library, which you can usually find at or near your county courthouse. There should be lots of good info there but what you want to look for are two things: whether you are eligible to file a mechanic's lien and how to file a small claim. There will be forms available for both of these things and you'll need to copy these forms. The librarians will not be able to give you legal advice but they can certainly show you what books you'll need to look at and what forms you'll need.
Every state has a mechanic's lien statute. This covers laborers and you may qualify since the work you did was repair work. If the statute applies to you then you can file a mechanic's lien in his county. This is something that will show up on his business and credit records and can be enough of a nuisance that he'll pay to get rid of it. Be sure to do this quickly - most states have a time limit, such as 90 days, during which you have to act to preserve your rights.
If you are able to do this, you can then sue to enforce the lien after a specific amount of time. But even if you can't file the lien, you can file suit on the contract. In either case, you would most likely file suit in small claims court or its equivalent in your state. Since you have a good claim that the contract was breached in your county and/or the work was done in your county, you should be able to file suit in Butler County rather than having to go after him in his county. You'll have to notify him of the suit, but he may not even bother to show up, in which case you get a default judgment. If he does, you'll have to explain your case to the judge but don't worry too much about legal formalities. They're used to dealing with pro se plaintiffs.
Keep receipts for all your fees, if any. You can recover these in most states. However, you will not be able to recover for your time. Once you get a judgment, you'll need to wait 30 days to see whether he'll appeal. If he doesn't appeal, you may decide to attempt to collect the judgment yourself, or you may consider turning it over to a collection agency. However, they will take up to 50 percent and there are no guarantees that they can collect the debt.
Finally, he may offer to settle the debt by offering you less than he owes you. Depending upon how much he offers, settlement is usually a better bet than trying to sue for the full amount. You know, a bird in the hand, etc.
Nolo Press has a good book on filing and collecting a small claim. Your law library or your local library may have this available. I'd also look at Nolo's web site at http://www.nolo.com. Hope this helps.
10.7 How can I patent something? I have an idea for a novelty/sex toy.I have used molding clay to create an image of it.I would appreciate if you can give me any information on how I can file for a patent or refer me to any literature that can provide the information needed to file same.
A: You will need to obtain the services of a patent agent or patent attorney, who can prepare the application, file it, and guide you through the patent process. The process of obtaining a patent can be quite expensive with significant filing fees imposed by the US Patent and Trademark Office, as well as attorneys fees and search fees, you can expect to spend well over $5,000.00 for a simple patent.
Most patent attorneys I know usually charge incrementaly, with a flat fee for each step of the process. For the first step, the attorney will provide you with a patent opinion letter, generated after he or she has done a search of existing patents and prior art. If, in the attorney's opinion, your invention is
new, useful and nonobvious, the basis requirement for obtaining a patent, you can proceed to the next step, which is filling of the application. Once filed, your application is assigned to a patent examiner at the US PTO, who will make an initial determination of patentability. The patent attorney or agent will spend a significant amount of time negotiating the application with the patent examiner (called
patent prosecution), which can result in the narrowing of your patent, until your patent is granted or finally denied.
Patent prosecution is a complex area of law and, although you can file a patent application yourself, I would recommend using an attorney. A simple mistake in your application or the prosecution of the patent can significantly reduce the scope of your patent claims, and can even result in the loss of other protections you may have if your application is denied. All patent attorneys and agents must take a special examination, called the patent bar, and be registered to practice before the US PTO. Most specialize in specific areas, such as chemical engineering, so you'll need to shop around to find one who can handle your invention.You can obtain a list of registered patent attorneys or agents in your area from the US PTO at http://www.uspto.gov.
I was astounded to see how many patents have been obtained for
male exercise harnesses and
penile decorations, which I found by doing a search of issued patents on the US PTO web site. There is also a wealth of information on patents and trademarks on the PTO web site so be sure to check this free resource.
11.1 How can I get my neighbors off my back? We are building an addition to our home. Our neighbors have called all zoning boards and inspectors of all departments saying things like " We are burying asbestos." Of course all accusations are lies. Their newest trick is they have just surveyed their land and it is coming up a foot into our yard. Of course I am sure that you know we have to have our land surveyed by our plot plan to determine how big we can build. These people continue to cause this grief. My question would be I want to do things legally and stop their accusations. I don't know where to begin. Can you please help me out with this. For the record we have our building permit and all is legal. My biggest concern is that these people will stoop even lower and call a child service on us although there will be no truth to it.
A: Normally, I don't favor suing neighbors since you still have to live next door to them, but these people seem to be beyond the pale. Have you had to expend any money to defend against these accusations? You may be able to recover these costs in some states. What has been the response of the zoning board and inspectors? Do they ignore them or has this caused you extra time, money and effort? Have you had a survey done yet? I'd be sure to get this issue resolved quickly - it's potentially the most troublesome.
The bottom line is that these people are interfering with your quiet enjoyment of your property and you may well be able to get some kind of injunction that would at least prevent them from further interference with your addition to your home. I'd consult with a local attorney.
11.2 Can I sue for medical malpractice? I have had a total of three spinal surgeries. The first was quite damaging; the other two were attempts to correct the first. I am disabled in that I have very little use of my left hand and am no longer able to do many of the things that I could before the operation. I am/was a keyboard musician and can no longer use music to supplement my income. In brief, what are my odds of successfully suing for malpractice. I am not looking for hard and fast legal advice....merely an opinion.
A: I can't really say what your odds would be - it depends on a lot of things and I simply don't have enough information, but I can at least give you some ideas about how to look at your situation.
First of all, malpractice cases can be quite difficult to win. They most important evidence that they require is that the treatment you had actually constituted malpractice (this is done through testimony of other doctors). They also require proof that you actually suffered harm by the malpractice. Then they require a translation of the damage done into some financial figure - usually based on loss of income, cost of further treatment, impact on your family, or some combination of these economic factors. Economic damages can also be increased by the addition of punitive damages, which are capped in some US states. Finally, a jury has to agree with your case and award you damages. Good cases tend to settle pretty quickly.
My best advice to you is to consult an attorney who specializes in medical malpractice ("med-mal"). Everyone of them that I know will give a free consultation. And every one of them that I know will be up-front with you about how good your case is because they all take these cases on contingency - that is, they take their fee only if they recover damages for you. Their percentage can be kind of steep -- up to 45% in Texas -- but they foot the bill even if you don't win. When you choose a med-mal attorney, be sure to go with a firm that has lots of financial resources and lots of experience in this area. Good luck.
Can I sue a doctor for malpractice? Last January I went to my personal physician because I was running a temperature and had difficulty breathing. He did an X ray and found that I had pneumonia. Because I am asthmatic and live alone, he wanted me admitted to the hospital through the ER. I was admitted by the chief resident,board certified: I was put in an isolation room. Initially, I did not think much of this. The day after admission I was visited by a pulmonologist who said he was going to do a bronchoscopy because I had a malignant lung tumor. When I asked him why I was in isolation, he told me that I also had TB. Needless to say, I was shocked and distraught, not to mention angry with my own personal physician.A couple of days went by, and pulmonologists continued to visit, but there was no further mention of the bronchoscopy. Tests for TB were negative. cat scan showed nothing significant. The chief resident visited me and told me that I had to have extensive radiation and chemotherapy. She wanted me to give her my cats because, as she said, I was going to be in and out of the hospital for radiation/chemotherapy and would not be able to care for them. (I am not making this up, as bizarre as it may sound.) I healed from the pneumonia and was discharged, but not before the discharging MD had me promise him that I would write a letter of complaint about the chief resident to her supervisor and to the chief CEO of the hospital. I agreed and followed through with my promise. Another cat scan 6 weeks after discharge proved negative, thank God, for an malignancy. It seems to me I have grounds for a malpractice suit. I have not seen a local lawyer, because money is a problem. Is this situation worth pursuing? Thanks for your time and consideration.
A: In my last column, I wrote about how there are sometimes wrongs without any legal right. Malpractice can sometimes be one of those wrongs. That isn't to say that you don't have a cause of action, you just may not have any relief. I would recommend that you consult with a local attorney who specializes in medical malpractice. Since most med mal attorneys take cases on contingency (that is, they only take a fee if they win a judgment), they rarely charge for the initial consultation.
To give you an example, a relative of mine was diagnosed with cancer two years after she'd been repeatedly asking her primary care physician for a referral to a specialist. Her HMO kept denying the referral and the cancer was only discovered after she finally talked them into further tests. I referred her to a friend who specialized in medical malpractice. His firm carefully evaluated her case, including paying for further tests, but finally declined her case on the basis that, although there was probably a cause of action, it would have made no difference in the treatment or the outcome since the cancer was very slow growing. Thus, she had no damages.
11.3 How would one go about legally changing their name? Believe it or not I can't get a straight answer in this hick town DMV or court and I guess I'm too lazy to hop into my mystery machine and investigate. Would the change cost anything? Would there be restrictions?
A: There are some restrictions on the name you can choose but, generally, if you are not changing your name for fraudulent purposes, you are free to change it. I recommend you have this done by petitioning your local state court. Check with your county clerk of the court and they should be able to tell you the procedure and the costs. Once a judge grants your petition, your name is legally changed and you should then notify everyone of the change. Be sure to make plenty of copies of the judge's order granting your petition. You'll probably need this to change your driver's license and other official documents and some businesses, such as banks, will be reluctant to change the name without this order.
11.4 Can my employer demand reimbursement for my expenses? Can my former employer go back in time to challenge my expense reports? I recently received a letter from an Ex-Employer stating I owed them $1,300 for an expense reimbursement adjustment. Basically, they are stating they paid me twice for the same expense reimbursement. This was 1 1/5 years ago! Additionally this is one of the BIG 4 accounting firms. I originally received a from letter, to which I replied I needed more details. They responded with more detail, but no proof. My question is, is there a time frame to which THEIR own errors need to be corrected?
With this firm I had to go through a rigorous expense verification process to receive my reimbursement. SO I am shocked to see that they books were incorrect and now I am being accused of owing them money. any advice would help.
A: I suspect the time frame (called the "limitation period") would be 3 years, but this will depend upon the statute of limitations in your state. That said, if it is your position that you did not double-bill them and their position that you did, they will have to prove your mistake or that the payment was as a result of some fraud on your part.
What documentation do you have? I always made copies of all receipts and kept those with copies of my expense report. If you have this, and the reports have been approved, then I don't think they have much chance of success. Even if you don't have these, they may not have proof either, which would make it your word against theirs, and I think you'd probably prevail.
That said, write them a letter demanding that they send you copies of the reports they are disputing and any other proof that they may have to support their claim. Also state that you are taking the position that you submitted valid expense reports, that they were approved pursuant to the approval process in effect at that time, and that you do not believe that you owe them any reimbursement. Then, wait to see what their response is. Be sure to save all correspondence from and to them, and send everything to them by certified mail with a return receipt requested. If you need to fax anything to them, be sure to save the fax confirmation sheet.