Rules of Married Filing Separately

Image from Pixabay

When you are married, you have the choice of filing your taxes jointly or separately. What are the benefits? Here we discuss the option of married filing separately on your tax returns.

What Is Married Filing Separately on Taxes?

married filing separately on taxes

Image from Pixabay

Married couples that file their taxes together, also called filing jointly, file with the same return. They take joint responsibility for the information on the return and the amount of taxes that are owed to the government. When you are married and file separately, each person in the couple can have a separate responsibility for the taxes owed. Filing separately while you are married can disqualify you from a large number of tax breaks. However, there are some situations that would warrant married filing separately (MFS) versus married filing jointly (MFJ).

Is There a Need to File Separately if You Are Married?

Here we will discuss situations that could create benefits for a person that is married filing separately.

You Need to Separate Your Tax Liability

There may be a need to separate your tax liability from that of your spouse. If you sign a joint return, both people are responsible for whether the information on the return is correct. If penalties or additional taxes are owed, both people are responsible. If you think your spouse is less than truthful about income or deductions, you may want to separate your tax liability. If you are audited by the Internal Revenue Service when you file separately, you are only responsible for paying what you owe on your earnings. In a situation where your spouse’s income is significantly higher than your own, it may be especially advantageous to submit your tax returns as married filing separately.

One Spouse Has Substantial Itemized Deductions

If both spouses have taxable income and at least one person, usually the spouse with lower income, has substantial itemized deductions that are limited by adjusted gross income, it may be helpful to submit a married filing jointly return. Itemized deductions can be limited by your adjusted gross income. Some of these deductions include:

  • Charitable deductions – deductible up to 20%, 30%, or 50% of adjusted gross income, depending upon type of gift
  • Medical expenses for those under age 65 – deductible if they are greater than 10% of adjusted gross income
  • Medical expenses for those age 65 or older – deductible if they are greater than 7.5% of adjusted gross income
  • Miscellaneous expenses, including tax preparation costs, investment expenses, and unreimbursed business expenses – deductible if they are greater than 2% of adjusted gross income
  • Personal casualty losses – deductible if they are greater than 10% of adjusted gross income

Here’s an example of a situation where one spouse has substantial itemized deductions. A couple has a large quantity of unreimbursed healthcare costs. The spouse with the most medical expenses can calculate the deductibility against his or her lower adjusted gross income. When filing separately, the allowable deductions could be higher than if the couple submitted their return as married filing jointly. Therefore, the couple submitting a married filing separately return could reduce the amount of tax liability.

Other Considerations for Married Filing Separately

tax filing

Image from Pixabay

Your state income taxes are another factor to consider if you want to submit tax returns as married filed separately. Calculating federal and state taxes owed may influence your decision to file separately. Here are some other considerations.

Community Property States

In community property states, marital property is owned by spouses equally. Marital property includes earnings, property purchased with earnings, and debts gained during the marriage. For example, if your spouse earned $60,000, half of that would be reported as your income even if you did not work outside the home. In general, assets owned by each individual before the marriage and after the couple physically separates are considered that individual’s property.

Community property states require different rules for distributing income and deductions when filing separately. Community property states include Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin (as of 2018). Even if only one spouse lives in a community property state, community property deductions must be split in half, with each spouse reporting half of the deduction on each return.

Other Reasons for Filing Separately

Some spouses may prefer to keep their finances separate. If the taxes owed when submitting a return as married filing separately are the same or very similar than if you file jointly, you may choose to file separately.

If you or your spouse has income-based student loan payments, you may want to file to keep the payments based on only the student’s income and not the combined income of the couple. If you or your spouse owes unpaid taxes and the Internal Revenue Service may take a refund to offset the balance due, you may want to file separately. If both you and your spouse earn a high income, it may be advantageous to file separately.

There may be non-financial reasons a couple would want to submit a married filing separately return. One member of the couple may not be able to consent to filing a joint return. One member of the couple may be unwilling to consent to filing a joint return. The married couple may be separated, but not yet divorced, and wish to keep their tax returns separate. The couple may live separately and one spouse qualifies as the head of household.

Head of Household Status

A legally married person may be considered unmarried by the IRS. If that is the case, that person may choose to file as head of household rather than married filing separately. Certain criteria must be met to submit returns as a head of household filing status. One of these criteria is that the spouses did not live together for the last six months of the year. Another criterion is that a child or other dependent must have had their primary residence with you for more than half of the year.

As head of household, you must have had to pay for more than half the cost of maintaining the household. If you are eligible to file as a head of household, there are certain tax deductions and credits that are available to you because of your status. However, determining status as head of household can be tricky. Consult your tax professional or the IRS What Is My Filing Status tool for more information.

Tax Rates of Married Filing Separately

tax rates

Image from Pixabay

Here are the federal tax rates in 2018 for those who are married filing separately, according to Forbes magazine.

If Taxable Income Is

Then Tax Due Is

$0 – $9,525

10% of taxable income

$9,526 – $38,700

$952.50 + 12% of the amount over $9,525

$38,701 – $82,500

$4,453.50 + 22% of the amount over $38,700

$82,501 – $157,500

$14,089.50 + 24% of the amount over $82,500

$157,501 – $200,00

$32,089.50 + 32% of the amount over $157,500

$200,001 – $300,000

$45,689.50 + 35% of the amount over $200,000

$300,000 and above

$80,689.50 + 37% of the amount over $300,000

Amending Your Return

If you change your mind about whether to submit your tax return as married filing separately or married filing jointly, you can file an amended return. However, some restrictions apply to filing an amendment, also known as a Form 1040X. If a couple files separately, they have 3 years from the due date of the original return (not counting extensions) to switch to a single return. However, if the couple files jointly, they only have until the April 15th deadline of that tax year to change their mind.

Cons of Married Filing Separately

There are negative impacts of the married filing separately status. One is that the two filers must both itemize or both claim the standard deductions. One filer cannot itemize while the other claims the standard deduction if they submit their taxes as married filing separately. In addition, those who submit taxes as married filing separately are unable to claim a number of tax breaks. These include the following:

  • Adoption Tax Credit
  • American Opportunity or Lifetime Learning Educational Credits
  • Child and Dependent Care Expenses
  • Credit for the Elderly and Disabled
  • Earned Income Credit
  • IRA contributions (under certain circumstances)
  • Passive real estate loss (under certain circumstances)
  • Student loan interest deduction
  • Tax-free exclusion of Social Security benefits
  • Tax-free exclusion of U.S. bond interest
  • Tuition and fees deduction (currently available through tax year 2017, but this may change in the future)

Some other tax breaks are significantly reduced. The following will be half of the amount as the deduction on a joint return.

  • Alternative standard deduction
  • Capital loss deduction
  • Child tax credit
  • Standard deduction
  • Saver’s credit

Conclusion

You should always do your research before filing your tax return. Crunch the numbers and see whether submitting your return as married filing separately, married filing jointly, or filing as head of household is the best for you. There are some circumstances where married filing separately, as discussed here, is the best choice. Consult your tax professional for up-to-date advice. You can also consult the IRS website for tools such as the What is My Filing Status interactive tax assistant for more information.

How To Get A Restraining Order: FAQS, Process And Its Different Types

If you are the victim of abuse in a relationship or have experienced sudden violence or threats outside a relationship, you might feel very isolated and alone. It’s important to tell someone you trust so you build the momentum to help you take action to leave or protect yourself. One very important way you can protect yourself is by making the police and courts aware of your situation and filing for a restraining order. We’re here to help you understand how to get a restraining order.

What Is A Restraining Order?


A court issues a restraining order to prevent one person from contacting or being within a certain distance of another person. This order prevents contact of any kind and often will have distance restrictions included in the text. It is intended as a legal process for eliminating the harassment and intimidation of the abused or threatened person. It’s important for someone in an abusive relationship to know how to get a restraining order, but there are other situations that warrant a protective order.

There Are Four Types Of Restraining Orders

  • Emergency—the police can issue these if you are in immediate danger and can’t get to a courthouse right away (expires after a few days)
  • Temporary—issued by a judge for coverage before a case goes to court (typically last 14 days)
  • No-contact order—if the abuser is convicted of a crime, the court will include this long- or short-term order as part of the punishment
  • Domestic violence restraining order—issued by a judge as part of a hearing and can last up to a few years

Reasons To File A Restraining Order


man writing a document

While you know restraining orders exist, you may not know if they apply to you or your situation. You must first understand the circumstances that warrant seeking an order to know how to get a restraining order. While we won't list every situation under which a restraining order can be filed, these are the most common. Note: there are always dangerous situations that might warrant this kind of protection outside these listed categories.

Psychological Abuse

Abuse doesn't always have to be physical to be considered dangerous enough to get a restraining order. Those who work with domestic violence victims recognize that psychological abuse is usually the most destructive aspect of domestic violence, and the most difficult abuse to heal from. Psychological abuse can involve:

  • Degrading behavior
  • Threats of violence
  • Unreasonable attempts to control another’s behavior
  • Threats against your children or loved ones
  • Behavior that interferes with daily life
  • Behavior that affects your ability to do your job
  • Destroying property and displaying weapons as intimidation
  • Stalking
  • Threatening to divulge sensitive information about you
  • Threatening to take your children or have them taken away

It’s important to keep a journal of all incidents of psychological abuse along with how each incident affected you. If acts of psychological abuse happen via text, email or social media, print out each occurrence for evidence to present to a judge. Be sure to list the date and time of each interaction and any potential witnesses.

Since this will be considered a legal document, it's important to present the facts of the interaction as objectively as possible. Play-by-play descriptions can be useful. The journal and printed materials are a vital step when you need to focus on how to get a restraining order for psychological abuse.

Physical Violence

The most important thing to do when faced with physical violence is to make a plan and get out. Physical violence ends in tragedy far too often. Many survivors believe the violence will decrease if they can do what it takes to meet the demands of their abuser.  The sad truth is that it usually escalates regardless of what the victim says and does to try to stop the abuser's attacks. No matter how many times a person tells you they’re sorry and that they will change—they rarely do. In many cases, abusers can only make real changes after they seek intensive therapeutic services while staying far from abused loved ones.

Abusers will often make the victim of their abuse feel like they’re overreacting and what they’re experiencing isn’t abuse. This is referred to as gaslighting and recognizing it when it happens is important to recovery. Signs you’re in a physically abusive relationship include when your abuser:

  • Physically hits, punches, pushes, shoves, grabs or kicks you
  • Uses a weapon of any kind to hurt you
  • Blames you for the physical abuse
  • Destroys your things
  • Hurts your pets
  • Hurts your children or other loved ones
  • Threatens to hurt him or herself if you leave

If there is an immediate threat to your well-being, call 911. The police will provide you with a police report. They will also often provide advice on how to get a restraining order and may connect you with domestic violence services in your area.

Please be aware, all of this advice applies regardless of gender. Many people think of abusers as men and the abused as women, but the reality is more complex than that. Law enforcement officials and those working at domestic violence shelters and hotlines are familiar with working with victims of every orientation and gender. There has been a growing awareness of these realities in the United States. No survivor of abuse should ever fear ridicule or disrespect for doing what they need to do to be safe. No matter who you are, you will be respected and helped when you reach out for assistance.

Financial Abuse

This often goes unaddressed because it can appear there isn’t help for those being financially taken advantage of. There is. Studies have shown that financial abuse happens just as often as physical and emotional abuse and 99% of physically abusive relationships also involve this kind of cruelty. Financial abuse can look like:

  • Restriction of the victim’s ability to use and gain money or financial tools
  • The abuser not allowing the victim to work
  • Having to account for every penny spent
  • Abuser using the victim’s credit without permission or repayment
  • Abuser feels entitled to the victim’s money
  • Being told where you can and can’t work
  • Pressuring you to quit your job
  • Harassing you at work

When this kind of abuse occurs, it makes it nearly impossible to create an escape plan because there’s no money to payroll such a plan. In the long-term, it can prevent the victim from getting housing, credit, and a job. It’s hard to get any of these things without a positive credit history, access to money for deposits or a tangible employment history.

This type of abuse also takes place in other familial and caretaker relationships outside of romantic ones. If you or someone you know is elderly and experiencing financial abuse, you can contact your local Agency on Aging or Adult Protective Services for specialized assistance in stopping and preventing the financial abuse.

Trademark Infringement

This is an uncommon situation, but may still be covered by a restraining order. If you’re in the process or trademarking or getting a patent for something you invented, and another party is using or selling that product or logo, you may file for a restraining order. This will prevent the other party from selling and using your invention until the lawsuit is settled.

How To Get A Restraining Order


Your state and local governments may have specific and special steps for how to get a restraining order in your area, but these are good guidelines to follow. Most importantly, don’t wait to file. Most courts require a person to file within 30 days of a violent incident.

Learn The Process

You should visit your county clerk’s office for instructions and forms to file. They will tell you how to get a restraining order in your county. The process may take a few hours of waiting but is fairly easy.

Domestic violence help centers will show you, step by step, how to get a restraining order and give you advice, making it as easy as possible. Some may have lawyers that work or volunteer for them to offer legal advice. They can point you toward a lawyer if they or you think you may need one. This could be costly, but you can seek lawyers who specialize in domestic violence.

Present Evidence

You want to walk into court prepared. Things to keep and bring with you:

  • Printed texts, emails and recorded voicemails—never delete these
  • Printed social media posts
  • Copies of police reports
  • 911 transcripts
  • Signed and dated witness reports
  • Medical reports and dated photos of injuries
  • Dated pictures of damage to property
  • Dated pictures and descriptions of weapons
  • Your journals and written accounts of dates and types of violence

If possible, bring any witnesses with you to court.

Practice

Practice what you want to say when you get to court. Remember to keep your focus on the subject of your restraining order. Don’t talk about why what the abuser is doing is wrong, talk about the abuse. Cheating, drinking, and cursing won’t help your case. Focus on what scares you, how you feel threatened and the facts of the abuse.

A big part of how to get a restraining order is staying as calm as necessary to present all your evidence. The person you’re getting a restraining order against may be in court with you, so preparing will help keep you composed.

Frequently Asked Questions


meeting

How Old Do I Have To Be To Get A Restraining Order?

Most states require you to be at least 14 years old.

How Much Will It Cost?

In most cases, it costs nothing to file with the court.

Does the Order Only Protect Me?

No. You can include children, roommates or other loved ones.

How Long Does An Order Last?

That depends. It can last weeks, years and, sometimes, a lifetime depending on the facts of your case.

What If The Order Is Violated?

Call the police. They will arrest the violator. If it’s a repeat offense, or the offense was severe, they could charge him with a felony.

If I Move Will I Be Protected?

Yes. All states recognize protection orders from other states.

Conclusion


people discussing in the court

Knowing how to get a restraining order is the first step to getting out. There’s nothing more important than ensuring your and your children’s physical safety. The law is on your side and a restraining order is one layer of defense against abuse. If they have isolated you, reach out to friends and family for help and community. Each connection will make you feel stronger.

The first sign of violence or abuse is the best time to leave. The longer a relationship lasts, the harder it may be to leave. If you’re wondering how to get a restraining order—you should start now. Starting on a plan to get out and to safety should be your number one priority.

If you are or suspect you are in an abusive relationship, you can call the National Domestic Abuse Hotline at 800-799-HELP (7233). They offer free, anonymous help 24/7. They offer advice in several languages and can help you figure out how to get a restraining order in your particular situation. If you are in immediate danger, always call 911. There is help and you are not alone.

How To Apply For Disability And When To Seek Legal Assistance

If you have become disabled and unable to work, you may be eligible for disability benefits. The Social Security Administration understands that the disabled person may not be able to come in for their own appointments and also lets a loved one apply on his or her behalf. Disability benefits come in the form of monthly support that helps with living expenses, medical expenses, and bills. Disability benefits may be short-term or long-term, depending on the situation. There are also disability attorneys and non-legal representatives out there who can advise you on how to apply for disability.

We will talk about the different types of disability, how to apply for disability, and when it might be helpful to seek legal help. Read below for more on how to apply for disability.

What Is Disability?

There are two types of disability, or disability insurance. Both types are obtained through the Social Security Administration. The first benefit is Social Security Disability Insurance, or SSDI. The second benefit is Supplemental Security Income, or SSI.

Disability

The difference between the two is that Social Security Disability Insurance is an insurance program more geared towards people who had been working regularly before their disability. Supplemental Security Income is specifically for disabled persons who have a demonstrated financial need.

To qualify for SSDI, you must have total disability. This means you are completely unable to perform your last job or any other job you have ever performed before. Total disability also means you must be incapable of adapting to a different job suitable for your level of ability, skill and education.

The criteria for SSI, or Supplemental Security Income, is demonstrated financial need and a disability that keeps you from holding gainful employment. People over 65 years may not need to show total disability to be eligible for SSI, per the SSA’s rules. To qualify for SSI, you must show both that you are completely disabled and that you do not have adequate means of supporting yourself. Completely disabled means showing you cannot perform any work, either work for which you have previously trained or work you could be trained for.

Applicants for Supplemental Security Income cannot own more than $2,000 in countable assets outside of the home in which they live and one vehicle.

Is There a Need to Apply for Disability?

If you became disabled, cannot work, and cannot meet your living expenses, you may apply for disability. It is also possible to apply on behalf of a disabled family member. If you find out you have a serious illness that is expected to be terminal you should apply for disability immediately. At least you will have peace of mind knowing you will have some support in meeting your living and medical expenses.

In all cases you should begin your application as soon as you expect to be disabled more than a year, as the disability application process can be lengthy. Children with certain medical conditions also meet the qualifications for receiving SSI benefits. Check with the SSA for more information on accepted medical conditions and for how to apply for disability for a child.

The process is mostly straightforward but requires you to be tenacious in pursuing your or a family member’s claim. It is important to remember that SSA denies many claims at first but that does not mean that you should give up if you are experiencing a total disability. SSI or SSDI can be a lifesaver if you or a family member experiences such a hardship. The application process should be taken seriously and not abused if you are not truly disabled. If you are truly disabled, do not be dissuaded as you go through the filing process for either SSI or SSDI. Many denied cases are appealed in the Appeals Court and won.

You may be eligible for SSI or SSDI or both. You can receive both SSI and SSDI at the same time. Even if you haven’t worked in a while and aren’t eligible for SSDI, you may be eligible for SSI if you have a demonstrated financial need.

How to Apply for Disability

There is a lot of help available regarding how to apply for disability. You can apply online for either SSI or SSDI using the Social Security Disability Insurance online application. The SSA will accept any documents submitted online through the SSDI online application and will follow up with you for any additional documents needed. If a friend or family member applies for disability on your behalf, the SSA will be in touch with you to have you sign the documents.

person holding tab with social security form

You can go to your local SSA field office to meet with an SSA representative who helps you prepare your SSI or SSDI claims. You can make an appointment by calling 1-800-772-1213 to make an appointment or just stop by your local field office. Friends or family members can also be present with you during your phone or in-person interview with the SSA.

You should stay in close contact with your primary doctor as you navigate how to apply for disability.  You should notify your doctor immediately if you plan to file for disability. Your doctor can help you fill out forms. The SSA will probably be in touch with your doctor for more information on your condition.

When to Seek Legal Help

Before seeking legal help on how to apply for disability, consider the pros and cons. The costs of hiring a disability attorney are thankfully clear and unambiguous. Disability attorneys’ fees are regulated by federal law. Usually the cost is the lesser of 25 percent of your disability back-pay or $6,000, whichever is lower. Disability attorneys only get paid if you win your case.

social security law printed papers

It can be beneficial to seek legal advice during the initial filing process on how to apply for disability. Since the Social Security Administration denies many initial applications, it is common for applicants not to seek outside legal help until the appeals process on how to file for disability.

Filing Your Initial Application

There are a few things to consider in your initial application. Disability attorneys can consult with you best on how to file for disability. First, disability attorneys advise you on your “alleged onset date”, or AOD, for Social Security Disability Insurance. Supplemental Security Income pay starts when you first apply.

For SSDI, AOD determines the date at which you were first eligible for disability and decides how far in the past your back-pay will reach. If you became disabled on a date before your filing, you can get pay as far back as 12 months before your filing date. However, there is also a 5-month waiting period after you first apply during which you are neither owed nor given any benefits. So you would have to have become disabled 17 months before the date on which you applied to get the full 12 months of back-pay. The SSA makes the final decision on the date on which your disability first started. This date set by the SSA is called the EOD, or Established Onset Date.

After that, often lawyers or non-attorney representatives do not get directly involved until the appeals process. If your initial disability application is denied, remember you have 60 days to file an appeal. You also must notify the Social Security Administration if you plan to hire a legal representative using the SSA’s Appointment of Representative https://www.ssa.gov/forms/ssa-1696.pdf form.There are multiple levels of the appeals process. Appeals are often denied at the reconsideration level. At the second appeals level, you will get a hearing before an Administrative Law Judge, or ALJ. A lawyer or non-legal representative will help you prepare your answers for the hearing. They will also help you best represent your condition and with cross-examination by the vocational expert during your hearing.

Do I Need to Hire a Disability Attorney?

While it’s possible to get your case approved by the Social Security Administration without legal representation, everything else being equal, Social Security is more likely to approve applicants who are represented by legal counsel. Disability attorneys are the experts on how to apply for disability. If your initial application was denied, in that case you may hire either a disability attorney or a non-legal representative.

Non-Lawyer Representatives

Non-lawyer representatives are also experts on how to apply for disability. A non-lawyer representative is paid the same as a lawyer – both are paid an established sum percentage out of your Social Security benefits and only get paid if you win – but a non-lawyer representative often only handles disability cases and may have more time for your case, while a lawyer could have multiple specialties and less time for your case. Non-lawyer representatives are also more willing to take on long-shot cases while lawyers are more interested in taking cases that will probably win.

Conclusion

Filing for disability does not have to be complicated with the wealth of resources and help at your disposal who can help you on how to apply for disability. Remember that you may not need legal representation for your initial application but as you enter the appeals process, enlisting the help of either a disability attorney, non-legal representative, or social worker or case manager may be beneficial. They can best understand how to portray your application in the best light to the Social Security Administration. With the help of these representatives, your chance of a successful SSI or SSDI application is greatly increased.

How To Sue Someone: 5 Ways To Determine If You Have A Case

Arbitration, the use of law to resolve conflicts between two or more parties, has existed for centuries. Many jurisdictions, including the US, have embraced courtrooms with outstanding enthusiasm. This is why you should know how to sue someone when you are in a dispute or conflict instead of taking matters into your own hands. If you try to resolve matters on your own, you could get sued instead, especially if you injure the person or damage their property.

courtroom

Civil litigation is common these days. In fact, a lawsuit is filed every two seconds in the US, with millions of others waiting to be resolved. Suing has become a growth industry. According to the American Bar Association, there were over one million attorneys practicing today, and law schools continue churning out new lawyers each year. If there is someone you have an unresolved dispute with, this content is for you. The article highlights how to sue someone, reasons you might want to do so, considerations for filing a suit, and how to determine whether you have a good case.

court hammer and law books

Reasons You Might Need to Learn How to Sue Someone

There is a myriad of reasons should learn how to sue someone. The following are a few of them:

woman writing on a notebook with some people

Recovering Damages

Enforcing a Contract

Protecting Your Property

Dissolving a Marriage or a Partnership

Replacing a Fiduciary

5 Ways to Determine if You Have a Good Case

Any lawsuit can be broken down into specific components that are legally required for the case to be a “good” case. As the plaintiff, a lawyer provides a checklist of elements and makes sure you can satisfy each with evidence. The cause of action depends on your lawsuit, but you need to consider whether your case meets the required elements.

Determine a case

If it is a breach of contract, such as when you have hired a contractor for home renovations and doesn’t meet their end of the deal as established in the contract, you must prove the following elements:

  1. Whether there was a valid contract in place. As the plaintiff, you need to show that a valid contract existed between you and the second party. If it is a written contract, it should be signed by both parties.
  2. Evidence of breach of contract. Here, you prove that the other party breached the contract by not doing what you had agreed on or had promised to do. For example, in our home renovation example, you must show that the contractor did not make the renovations you had agreed on.
  3. Performance. For a successful breach of contract action, show that you held up your end of the contract terms, such as the provision of capital for the contractor to fulfill the obligation.
  4. Damages. You must prove that the breach of the contract led to economic damages. For example, if the home renovations were meant to facilitate a certain business, you should include the profits you would have otherwise made.
An Attorney

For negligence, you must prove the following 5 elements:

  1. Duty. The defendant should have owed a duty to the plaintiff. The duty arises in several forms.  For example, drivers have a duty to all other drivers on the road by driving safely.
  2. Breach of duty. Here, it should be established that the defendant breached the duty with respect to the plaintiff. Here, it should be established that the defendant failed to act reasonably to fulfill his or her duty to the plaintiff.
  3. Cause in fact. Here, it should be established that if not for the defendant’s actions, the plaintiff would have suffered no injuries.
  4. Proximate cause. This is related to the proximity of the actions of the defendant to the harms that were caused. For instance, if a pedestrian is hit by a motorist they might call their mother from the hospital. The mother might then suffer a heart attack instantly. It should be established whether it is fair to attribute the heart attack to the actions of the defender.
  5. Damages. You must prove damages were incurred, such as medical bills, or pain and suffering caused by the injury.

Considerations before Filing Suit

shaking hands after filing a lawsuit

The following are the considerations before suing someone:

  1. Whether you have a good case. The elements of a good case must be met.
  2. Whether you have tried settling the dispute by compromise. The other party may have a valid argument or a potential claim against you. In that case, adjust your position accordingly. The court may look unfavorably on your suit if you did not seek to resolve the dispute outside of court despite the other party’s willingness to do so.
  3. Whether you have made a final demand in connection with the dispute. The defendant will want to settle the dispute and resolve it instead of sorting it out in a court of law.
  4. Whether you’ll win the dispute. You need to be reasonably certain that the judgment will be in your favor before spending a lot of money on the case.
  5. Whether you have the time and resources to devote to the lawsuit. Lawsuits drain a lot of energy and time. If you don’t have enough time for it due to work, social life, or family, it may not be worth it.
  6. Whether you can pay your lawyer. Lawsuits are typically expensive and you should have the money to cover the legal fees. A few lawyers will agree to only charge fees from the defendant after winning the case in your favor. You will want to check beforehand if your lawyer is willing to agree to this arrangement.
  7. Where you’ll be able to sue. If a person is from another jurisdiction or state, you may not have the power or jurisdiction to bring a suit against the person. Therefore, seek services in his or her location.
  8. Whether you’re within the applicable “statute of limitations.” Here, check with your lawyer to ensure that the time limits of the lawsuit have not run out.
  9. Is it a small claim and can you represent yourself? If it is a small claim, use a “conciliation” or “small claims” court. Here, you might want to represent yourself as you’ll save attorney’s fees.

Conclusion

gavel

Civil suit court cases are fairly common these days. For you to protect your rights and interests you should know how to sue someone. This helps you get compensated for injuries and also ensure that you protect your property. In most instances, you’ll sue someone to enforce a contract, recover damages, dissolve a marriage or a partnership, protect your property, or replace a fiduciary.

For the lawsuit to be a good case, it must meet the elements discussed in the article. Look into the considerations highlighted for you to sue. We hope this article has adequately addressed how to sue someone, reasons you might want to do so, considerations of filing a suit, and ways of determining whether you have a good case.


Things To Know Before Signing A Non Compete Agreement

When you find a new job, you must sign a contract before you officially start working. The contract covers the terms of the employment, including issues like salary along with the duties and responsibilities. However, the employer may also need you to sign a non compete agreement. If you didn't sign such an agreement when you started working, you might notice that your employer pressures you to sign the agreement when you are being promoted or getting a pay raise.

Signing the non compete agreement is beneficial for employers as it helps them protect their businesses as it bars employees from starting a similar business. All types of businesses can benefit. So what is a non compete agreement? This content highlights what this agreement is, whether there is a need for signing it and things you should know before signing it.

What Is a Non Compete Agreement?

A non compete agreement is a contract between an employer and an employee that prohibits the employee from engaging in a business that competes with the employer's business for a certain time period and within a certain locality, which is specified in the agreement. Even though the employer cannot force you to sign it, they may terminate or not hire you if you refuse to sign the contract. Note:  courts are not usually supportive of non compete agreements; they will consider factors pertinent to the case to determine whether this kind of an agreement is reasonable.

Therefore, if you are negotiating a non compete agreement with your employer, we recommend you to ensure that it is limited only to aspects necessary for the employer’s protection. You should also ask for severance payment when terminated under such circumstances. The non compete agreement, which is a protective mechanism for the employer from the undue competition by an employee, can also be referred to as a "restrictive covenant" or a "covenant not to compete." The contract is common these days when applying for jobs and in contracts involving the sale of businesses.

The main purpose of the contract is to restrict the ability of employees to go into a business similar to the employer’s within a specific locality for a certain time period. If you sign it, you agree that you won’t compete with your employer by engaging in any business similar to that of your employer, as an independent contractor, employee, significant investor, part owner or whatever other forms of competition your employer identifies and includes in the contract.

Non Compete Agreement Elements

Non Compete Agreement Elements

The contract is typically state-governed and does not fall in the federal law jurisdiction. The non compete agreement covers these elements:

  • The traditional "covenant not to compete" prohibits the employee from joining a competing businesses during a certain period and within a specific geographical location.
  • Non-solicitation agreements bar approaching clients, poaching employees or wooing former employer’s supplies.
  • A confidentiality agreement, also known as a nondisclosure, bars the use or revelation of information of former employers to new employers. The information could include client lists, marketing plans and product formulations.

Is There a Need for Non Compete Agreements?

BUSINESS MEETING

The non compete agreement will legally bind employers and employees. It is important as it prevents the employee from competing with his or her employer after he or she is terminated, for a specified period in a certain locality. Employers benefit from the contract since it discourages an employee from leaving the current position held in the company or business and taking a new position, which presumably pays better, in a competitor's firm. Once the employee joins the competitor firm, he or she can pass on valuable information gained while working for the previous employer. This information can be used to gain a competitive advantage, which is deemed unfair.

As such, by making sure that the employee signs the agreement, an employer protects the company’s goodwill and trade secrets. It is also a viable strategy to retain talented and experienced employees from making a move to competitor firms. This allows the employer to benefit longer from its investment in providing a valuable training to staff. However, the agreement cannot include limitations on the employee’s right to earn a living and move on when he or she leaves the current employer.

Employers not using the non compete agreements should consider doing so. There are many benefits of ensuring that the employees sign the agreement. It is free and easily available to download off the internet. However, there are some demerits associated with the agreement since research has established that the non compete agreement can limit job mobility, discourage venture-capital investments and accelerate talent flight.

Provide Information on Non Compete Agreements

contract SIGNING

What Should Be Included

For the agreement to be legally valid, it should:

  • Have an intention to protect a legitimate business interest, such as trade secrets or retaining valuable customers
  • Be reasonable regarding its time, scope and geographical restriction
  • Be supported by consideration, such as money

5 Things Courts Look For To Establish The Reasonability Of The Agreement

courtroom

The court establishes the reasonability of the contract based on the following points:

  1. The potential harm to the employers. The agreement should establish the potential harm to the employer's business. 
  2. The specified time period. The reasonability depends on the nature of the job. For instance, a manufacturing business can have a period of about a year. For yoga instructors, it can be three to six months.
  3. The banned territory. This may be as far as ten miles away from the previous employer for a hair salon but a three-state area could be reasonable for a business or sales manager.
  4. Impact on the employee. Signing the agreement doesn’t mean that the employer will not work for the remainder of his or her life. It is not reasonable for the employer to deprive the employee of making a living or forcing a relocation. Courts typically consider this point more than the others.
  5. Interests of the general public. The contracts should not stifle competition to the point of creating a monopoly.

Courts do not honor provisions that are deemed as unreasonable, a point that is established when negotiating for such contracts. This again depends on the state in question and the court used for such proceedings.

Contract Negotiation

Signature

Employers should first focus on what they need to accomplish. If the employer is the owner of a local small business, you might ask where the contract came from. If it was downloaded from the internet, it is likely to include inapplicable clauses so it is best that you discuss point by point in the spirit that the resulting clauses will benefit you and doesn’t comprise excess baggage. This means that the parties involved should know the benefits and demerits.

The agreement binds both parties. As an employee, you need to ask for assurance in the contract that as you gain experience, you will receive promotions and pay raises so you are not stuck at your entry-level salary as the contract can trap you. Even if your employer is a large corporation, you’re entitled to negotiation. If the employer is not willing to negotiate, you’re free to walk away.

Always consult a lawyer to look into the contract document so that if there are any issues that are not in your favor, he or she can explain them to you and offer advice. You might also want to consult a lawyer if the employer wants you to sign the agreement as a condition for getting severance when being terminated. The situation is even more delicate when being offered a promotion or pay raise. Some states may require an add-on, such as more vacation when signing the contract if you're getting this raise or promotion.

You need to watch out for lawyer fees since some contracts stipulate that the employees pay for the legal fees of the company. Note that how the employer negotiates with you before signing the agreement can be an indicator of how you’ll be treated when employed. Therefore, you might be wary of employers who include too many clauses in the agreement that don't favor you as an employee.

Conclusion

A non compete agreement prohibits employees from engaging in a business that competes with his or her current or former boss’s business. For the contract to be valid, it must protect a legitimate business interest, such as trade secrets. It should also be reasonable regarding its time, scope and geographical restriction and must be supported by consideration, such as money. Again, both parties have to sign it for a court to recognize it. The non compete agreement falls under state jurisdiction.

You should note that the employer cannot force you to sign the non compete agreement but may terminate or not hire you if you refuse to sign it. It's mainly intended to restrict the ability of employees to go into a business similar to the employer’s within a specific locality for a certain period.
 
It is vital for employers since it discourages an employee from leaving the current position and helps protect the company’s goodwill and trade secrets. Some employers may use it as a strategy to keep talented and experienced employees from making a move to the competitor firm.

For employees:  before signing the contract, always consult a lawyer to look into the contract and provide advice. We hope this article has adequately addressed what a non compete agreement is and whether there is a need for signing it.

Guide To Residential Lease Agreements

The time has finally arrived; you are moving out of your parents' home and into your first apartment. Or maybe this isn't your first move to a new rental home. Either way, you are over-the-top excited. You are packed, pretty much, and ready to go. There's just one more thing you have to take care of. You have to go and sign your residential lease agreement.

What, you are asking yourself, exactly is a residential lease agreement? Sure, you know it's your lease, but do you really need to sign one? Just how important is a residential lease agreement, anyway? How will you ever understand all that legalese? Let's see if we can help.

What Is a Residential Lease Agreement?

A residential lease agreement is the commonly used legal document between landlords and tenants. While they can adapt this lease agreement to meet the specific needs of landlords, it still must follow all applicable state regulations and contain all the required legal disclosures. The lease agreement establishes the rules that will be followed by both the tenant and the landlord.

You may also see a residential lease agreement written under one of these other names:

  • Renters Agreement
  • Apartment Lease Agreement
  • Basic Rental Agreement
  • House Lease Agreement

When to Sign a Residential Lease Agreement

residential house

You should sign a lease agreement if you will be renting any property that is considered livable. A livable property could include an apartment, a townhouse, a house, a mobile home, a condo, or even a single room. The lease will set the term, or the length of time you will live at the property, which is usually one year.

Who Should Sign a Residential Lease Agreement

signing an agreement

A lease agreement should be signed by every adult who will living at the rental property. Each adult should be considered a tenant and be held responsible for an equal share of the rent, deposit, and any related fees. Each person is also equally responsible for the care and maintenance of the rental property.

Is There a Need for a Residential Lease Agreement?

document needs signature

The residential lease agreement puts the responsibilities of both the landlord and tenant in writing. This helps to keep confrontations to a minimum and, hopefully, helps to avoid any legal headaches. Both parties are protected by this legal document should a dispute arise. Below are some commonly disputed areas between landlords and tenants.

Repairs and Maintenance

man cleaning the yard

Perhaps one of the biggest areas of misunderstanding between landlords and tenants is who is responsible for certain repairs and maintenance. This will be clearly defined in the lease agreement, and should be followed by both parties to limit confusion. If you are unsure if you are permitted to make a repair, contact your landlord first. Repairs and permanent changes, such as installing new cabinets or painting walls, should never be done by tenants without their landlord's approval.

Generally speaking, the tenant is responsible for keeping the property neat, clean and presentable. Also, he or she is responsible for repairing or paying for the repair of any damage caused by his or her own neglect. The tenant must notify the landlord if a major repair is needed.

The landlord is responsible for maintaining the safety and integrity of the property. He or she must repair any dangerous living condition and fix defective areas such as plumbing, major appliances (if included with the property) and heating and air conditioning. The landlord must inform the tenant of how to request a repair and how the repair will be handled.

Deposits and Fees

safe

The end of the term has arrived, and that means that the question of what is to be done with the security deposit has come up. The standard security deposit on residential lease agreements is equal to one month's rent and is paid and the beginning of the lease. The lease agreement will state any reasons why the security deposit will not be refunded, for example, to pay for damage done to the property. It will state how long after the lease is ended, the landlord may hold the deposit before refunding it to allow for inspection of the property. The lease will also state whether or not the security deposit can be applied towards the last month's rent, which is not usually the case.

Fees can include a charge for a returned check, along with late payment fees. Cleaning fees may be applied at the end of the lease to pay for professional cleaning, and this will be clearly written in the lease agreement. Many landlords also charge a pet fee for those tenants who wish to bring their pet with them. This fee is to cover any potential, additional cleaning that may be required due to the presence of the pet. It will detail the amounts of the various fees in the lease agreement at the time it is signed.

Rent

real estate

The amount of rent for the term of the lease agreement will be agreed upon at the time the lease is signed. This amount cannot be arbitrarily changed by the landlord during the lease. The lease agreement will state the due date, acceptable forms of payment, and if there is a grace period. It will also specify if payment is to be made by mail, in person, or if either way is acceptable.

Landlord Entry

person signing a document

The residential lease agreement will specify the landlord's right to enter to property. The lease agreement will indicate whether the tenant needs to be present when the landlord enters. In most cases, the landlord has the right to enter the property in the absence of the tenant. It will state the amount of notice the landlord is required to give the tenant prior to entering the property.

FAQ'S on Residential Lease Agreements

document and a pen

What is the Difference Between a Month-to-Month and a Fixed-Term Lease?

Will I Have to Pay My Utilities?

Can I Move Someone in With Me?

Can I Have a Pet?

What if I Get a New Job During the Lease?

What if I Get an Eviction Notice?

Conclusion

Residential lease agreements are important for the landlord and for the tenant. They provide the guidelines for both parties to follow to ensure a positive landlord/tenant relationship. They also provide legal protection to both parties should an irreconcilable dispute arise.  So, now that you know more about residential lease agreements, you should have an easier time understanding yours when you go to sign it.  Still, be sure to ask questions about anything and everything that you want clarified. Residential lease agreements can vary slightly from landlord to landlord, read carefully, make yourself informed, and be sure to understand the fine print before you sign.

Then, enjoy your new apartment. There's nothing quite like having a place you can call your own. Even if it is stacked high with boxes and kind of cluttered right now.