Facing Foreclosure? 4 Things You Need To Know

The foreclosure process isn't something any homeowner wants to go through. It’s upsetting and can add more problems on top of the issues causing you to default on your mortgage. According to the Mortgage Bankers Association, about 250,000 families face this problem every few months. The process is started by the lender when you default on your monthly mortgage payment.

Your lender won't always try to take away your home, though. If you are able to come up with the money owed or come to a specific agreement with your lender, this can resolve the problem. By communicating with your lender, understanding your rights, and talking to a real estate attorney, you can better understand the process. Before you can look at potential solutions, however, you first need to understand the foreclosure process.

What Is A Foreclosure?

A foreclosure is a legal process that allows a lender to take back ownership of a property from the current homeowner. This typically occurs when the person who borrowed money to purchase the property can no longer make the monthly mortgage payment or are consistently late with their payments. While foreclosure often results in the lender taking ownership of the property or selling it, there are options to avoid losing the home or lessening the damage done to your credit. For example, you can have a short sale or ask for a mortgage release.

If the property is repossessed, the lender can sell the home through a real estate agent or public auction to recoup the money lost. If a public auction is held and there are no bids, the lender becomes the new owner.

Understanding Your Options  

It’s important to understand all of your options legally when you get a foreclosure notice. Talking to your lender immediately is necessary to avoid foreclosure or avoid a heavy hit on your credit. If foreclosure is unavoidable, make sure you are following the procedures correctly to eliminate additional problems.

If you do end up dealing with foreclosure, you're likely to go through the following steps:

1. Default On Mortgage

The first step in the process is when you default on making mortgage payments to your lender. The current owner must default, and this doesn’t usually happen right away. It may take several late mortgage payments or no payment for the bank to start the process.

Typically, a bank will give the homeowner time to catch up on payments because they understand the reality people face. Hardship can happen to anyone, and there is usually a grace period for the borrower. The bank is likely to send you many emails, phone calls, and letters letting you know you owe money.

Banks or lenders also typically offer different payment options to the current homeowner to get back on track and stay in their home. It is in the best interest of both parties that payments are made. The bank wants their money, and the homeowner wants to remain in their home. The bank isn’t interested in kicking people out of their homes; they are in the business of lending money to make money.

Usually, a lender cannot file a notice of default until a month after contacting the homeowner to discuss the present financial situation. This gives the owner time to figure out a plan. Sometimes selling the home before getting a notice is an option. If you are able to do this, you can pay off what is owed and find a smaller or cheaper home. This is great for homeowners who already have a lot of equity in the home and may be your best option. If it's not, seek guidance from a financial advisor, HUD, or an REO realtor in your area.

Reasons for Default

There are a number of reasons why someone might default on their mortgage:

  • Unemployment
  • Credit Card Debt
  • Medical expenses
  • Relocation sudden
  • Excessive debt
  • Divorce
  • Legal problems
  • Loans
  • Can’t sell the home

2. Notice of Default

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When the homeowner or borrower cannot come up with the money, the bank or lender will send a notice of default in the mail. The letter usually comes as a certified letter and gives the homeowner 90 days to pay the most recent payment. This is the first formal attempt in the process of foreclosure. Once received, the homeowner should make plans to pay off the debt so the process doesn’t proceed.  If you are able to catch up on payments, you can have your mortgage reinstated.

3. A Notice Of Sale

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After the certified letter comes and you cannot come up with the funds to get current on your mortgage, the default process continues. The third step is known as a notice of sale. You will be notified that the home will be sold by the lender at a home auction within 21 days.  This will come as another certified letter in the mail.

The notice of sale will also be published in a weekly newspaper for three weeks. This helps allow potential buyers to learn of the sale. Even though this process is going on, the owner has the option to still pay back what is owed and can reinstate their mortgage. They have until five days before the home goes to auction to do so. This is why the process takes time. Don't panic if you receive a notice of sale. You're not being kicked out of your home just yet.

4. Property Is Auctioned

During the auction part of the process, the home is sold to the highest bidder. The new buyer must pay the full amount immediately. This new buyer will get the lender’s deed after the completed sale of the property. They then become the new official property owner. Once this is finalized, the new owner has to serve the old owner or occupant of the property a quit or move out notice. Sometimes this doesn’t work, and the new owner must to go through the eviction process with the courts to get the individual or family out of the home.

What Happens If The Home Doesn’t Sell At Auction?

If your home doesn’t sell at auction, the property becomes a real-estate owned property. This is also referred to as an REO property. However, just because it doesn’t sell doesn’t mean you and your family can remain living in the home. When the bank owns the foreclosure, they have every right to evict you from the property. Sometimes they will offer the previous owner relocation assistance. Even if they don't, the current resident or previous owner can ask for assistance in relocating.

Making The Process Easier

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If you defaulted on your mortgage and get a foreclosure notice in the mail, be sure to have all your financial information gathered. Have your basic loan and financial information on hand when you call your mortgage company. This includes your mortgage statements and information about any other debt such as student loans, car loans, and credit card debt as well as all income and tax information.

You should be ready to explain the current situation you’re in, the hardship, and why you are having trouble making your mortgage payments. Be honest and upfront with the lender so you can work towards finding a solution. You may also want to find out if you’re eligible for a mortgage release or short sale.

Remedy The Situation

Once you've talked to your lender, it's time to look at solving your financial problems. If possible, you should look for ways to make enough extra money to catch up on your mortgage. There are some options here. You could pick up a second job or, if you're married and only one of you works, the other person could get a short-term job.

If you have children, having an additional job can be taxing. However, getting a part-time job from home can help relive debt issues. Getting another job might be too much depending on your circumstances, but with a job that allows you to work remotely, you may be able to earn additional money and make up your payments. These kind of jobs are prolific today. Any hobbies you might have could also make you money on the side that would be less taxing.  

Another option to consider is a consolidation loan. These loans can merge some of your other debt, including credit card debt, into one single loan. Often, these loans have a lower interest rate than some or all of the combined debt. That means your consolidation loan payment is likely to be less than the total monthly payments you were making to the individual lenders.

There are a variety of life issues that cause a homeowner to face foreclosure, but there are options out there. Work with your lender and be open to the various solutions they present.

Conclusion

A foreclosure can be detrimental to you and your family. It can ruin your credit and impact the way you live for several years. Acting early can minimize the damage, though. When this process occurs, it's vital that you understand that you do have options. By learning about the process and understanding what your rights are, you'll be able to make informed decisions regarding your mortgage.

Regardless of your circumstances, you want to act as soon as possible and find a plan that works for you.

How To Choose The Right Divorce Lawyer

A divorce is a process of terminating a marital union. Divorces are emotionally draining, and if your partner wants a part of your wealth or children are involved, it is even more stressful. Finding the right divorce lawyers to help you with the divorce may be difficult since not all lawyers specialize in this area. It is important that you find someone who is experienced in handling such matters and knows everything about the divorce process. This maximizes your chances of a beneficial outcome for yourself.

It is important to identify the right attorney as this saves you a lot of money and time. Court proceedings will be faster and potentially less expensive. You’ll avoid the extreme stress associated with the divorce process, which is typically long and drains you financially and emotionally. If you don’t know how to look for the right divorce lawyers, you will find this article beneficial. It highlights who divorce lawyers are, why you need them and tips on how to choose the right one.

Is There A Need For Divorce Lawyers?

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You need a divorce lawyer to help in the dissolution of the marital relationship. This typically entails several issues, including custody of children and division of property. You should ensure that you work with a divorce attorney who you feel comfortable with on a personal level so that you can discuss all aspects related to the divorce without worrying about having to expose personal information. Divorce is emotionally draining, which is why it requires delicate skills in dealing with people who are divorcing and the legal know-how. You need to hire divorce lawyers because of:

Experience

A qualified divorce attorney has experience in family law that you might not have. While you may have a little legal knowledge, there is no reason to handle your divorce. Finding a divorce attorney will not only provide you with the much-needed experience. If you choose to handle your divorce, you’d probably make a crucial error if you are not familiar with the paperwork involved or the court proceedings.

Unilateral Decision

Most divorce cases entail a unilateral decision. One party is typically for the divorce while the other opposes it. This can be emotionally draining as it will accompany disputes outside of court, which complicates case issues further. Therefore, if you want the divorce proceedings to be handled with the required expertise and finesse, hiring divorce lawyers is your best bet.

Avoid Mistakes

The legal system of divorce proceedings is complicated. Besides, the divorce is stressful, which makes it even harder for you to think clearly. When you don’t have a clear mind, there is a high likelihood you’ll make mistakes. When you hire an experienced divorce lawyer, you’ll be covered as he or she will circumvent any potential error you’d probably make.

Reducing Emotional Stress

Going through a divorce is emotionally draining. You need a divorce lawyer, who is knowledgeable and organized to take care of any legal issues that arise in the entire divorce lawsuit and address concerns and needs you may have. This eases some emotional stress, making it easier for you to go through the divorce process, including all the court proceedings.

Objective Opinions And Advice

One advantage of hiring a divorce attorney is that he or she will provide objective advice and opinions. This is because they can view the case from a different angle as they are neither invested emotionally in the case nor affected by it. They will guide you in the trickiest parts of the divorce.

Paperwork

Divorce entails a lot of paperwork. Sometimes, what needs to be filled is not simple. Without the help of experienced divorce lawyers, you might not even know where to start. When you hire an attorney, you are certain that all the complex issues of the divorce will be taken care of.  

Provide Information On How To Choose The Right Divorce Lawyers

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We have compiled a list of tips to help you choose the right divorce lawyers. These include:

Decide On The Preferred Divorce Process

This is the first decision you’ll have to make. You should decide whether you want to use litigation, mediation, collaborative divorce or any other divorce process at your disposal. After that, you will match the divorce process you want with the right attorney. If you want the divorce to be settled amicably, don’t hire shark attorneys who will probably escalate the divorce conflict. 

Make A Decision On The Legal Services You Need

Each divorce is unique, and therefore, you will need legal advice, but you don’t have to pay a $400 per hour for divorce attorneys. However, if you own big companies or assets, or in a complicated financial situation, you might need one, even when the fees are exorbitant. If you have a short marriage, no real estate or kids, and you’re not dividing any retirement plans, hiring big law firms is an overkill. In that case, look for someone who isn’t exorbitant.

What Can You Afford?

You need to consider what you can afford as no one wants to pay thousands of dollars to a divorce lawyer. You have to balance the legal fees. Don’t go for someone who will charge unreasonably, but someone who is affordable but can perfectly deal with your divorce situation.

Be Realistic

Divorce is a legal process meant for resolving custody issues and dissolving your assets. The attorney’s job is to represent you. Even though you might want him or her to listen to your sadness, pain, anger or frustration, you should be realistic since they are not trained as therapists. If you need therapy, you should visit a therapist, otherwise don't overburden the lawyer on matters he or she can't help.

Stay Focussed On The Goal

You want to file for divorce and avoid lifestyle depreciation. This should be your goal, so don’t let emotions get the better of you and get rampant in property negotiations as this should not be in the bigger picture. Otherwise, your divorce will take a longer, more expensive and more litigious.

What Do You Want?

You should know what you want before seeking the services of divorce lawyers. Therefore, before proceeding to the attorney, consider other alternatives, such as traditional litigation. If the divorce does not involve children or finances, it might be better if you hired a mediator to negotiate the divorce terms. Mediation is faster and cheaper. So if you decide to go to divorce lawyers, ensure this is the last resort or the necessary choice.

Identify And Interview At Least Three Potential Attorneys

You should take time to research the attorney. The internet might be of help here. Once you settle on the three most preferred lawyers, you can now interview them to find out their area of practice and whether they will be helpful in your divorce. You might also want to consider their legal fees. Go for the lawyer who seems to be the best negotiator.

Look For Red Flags

Many attorneys will tell you what you want to hear so they can close the deal. If they make promises, don’t believe it. If in the interview process or discussing your case, the lawyer divulges confidential information from other cases or if they aren’t respectful; you need to find another lawyer who has positive traits. Also, consider a lawyer who is not constantly distracted by emails and phone calls.

Choose The Attorney

The divorce lawyer you go for should be knowledgeable, local, professional, responsive, and a good communicator. It is someone you feel comfortable with and trust. The attorney should also be affordable.

Conclusion

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Just like any profession, there are good attorneys and bad ones. You should be careful when choosing an attorney, but it is up to you to do your homework and ask the right questions so you settle for the best divorce lawyer. The best divorce attorneys will listen to your concerns, ask queries about what you want to achieve, and provide honest assessments of your divorce so that you achieve your divorce goals. The lawyer should be knowledgeable, local, professional, responsive, great communicators and trustworthy. We hope this article has adequately addressed what divorce lawyers are, why they are important and tips on how to choose the right one.

Rules of Married Filing Separately

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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?

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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

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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

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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.

8 Things You Should Know About A Partnership Agreement

When two or more people start a business, they need to agree on how the business will be conducted. This will help the partners to prevent any future disagreements, and if any emerge, there should be a detailed legal mechanism on how to resolve them. There are so many things that partners should agree on including how much partners will contribute to the formation of the business, how they will be salaried, and what duties each partner is responsible for. These aspects should clearly be delineated in a partnership agreement.

So what is a partnership agreement? This article highlights what this agreement is, its importance, and things to consider when drafting it.

What Is A Partnership Agreement?

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A partnership is a business with two or more people, with each owning part of the business. The partnership agreement sets out all the terms and conditions that the parties agree to when forming a partnership. In fact, the partnership agreement is the most important document for a partnership. If a partnership begins without an agreement, it can be jeopardized if something happens to one or more of the partners.

In the partnership agreement document, every possible contingency is included, such as profit sharing ratios and the duties and responsibilities of each partner among other aspects. In the partnership, each partner should buy in or invest in the partnership and they typically share the profits and losses based on the percentage share of ownership.  

Why Involve An Attorney

The partnership agreement is a binding contract. Since it is a legal document, this implies that it is best to have an attorney guide you and provide the much-needed advice when including terms and clauses in the agreement. This way, it will provide adequate guidelines on all business aspects that need to be covered in the contract.

Is There A Need For A Partnership Agreement?

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Running a business on a handshake is not the smartest idea since there may be disagreements, which may prove difficult to resolve if there are no clear set guidelines. Having a partnership agreement gives you and your partners the protection you might need just in case something happens that may endanger the business relationship. It answers the “what if” questions so you don’t have to deal with them when a crisis strikes. For instance, if a partner decides to leave the agreement, it has clearly set guidelines on what should happen.

A partnership agreement is vital as it includes and guides partners in all the following aspects:

  1. 1
    Name of the partnership. There are various types of partnerships, such as LLCs and joint ventures, and the name should be specified in the partnership agreement.
  2. 2
    The term of the partnership. Partnerships can be perpetual or span a specific term length.
  3. 3
    Name the partnership is doing business as (if different). For instance, if the business is under different names or offers different types of services.
  4. 4
    Purpose of the partnership. This entails specifying the activities that the business engages in. This includes the products and services sold and how new services or products will be added.
  5. 5
    The requirements of admitting new partners, including their contributions.
  6. 6
    Types of partners in the partnership. Some of the partners may have more day-to-day duties, such as the general partners, while others may just contribute and have limited participation.
  7. 7
    Types of partners in the partnership. Some of the partners may have more day-to-day duties, such as the general partners, while others may just contribute and have limited participation.
  8. 8
    Each partner’s contribution. This should be specified so that when profits are made, the partners can share according to the amount they contributed. Contributions could be in cash, installments, property, or service.
  9. 9
    The agreement should specify what happens in the event that a partner fails to make the initial contribution.
  10. 10
    It should also clarify whether there will be additional future contributions when the contributions will be accepted, and how they will affect the shares for each partner.
  11. 11
    How profits and losses made through the proceeds of the business will be shared or distributed among the partners, in terms of percentages (percentages, unequal, equal).
  12. 12
    How decisions for the business will be made.
  13. 13
    Duties and responsibilities. Each partner should have an assigned duty and management power, including the skills contributed and the hours for work for each partner.
  14. 14
    Draws to partners. When and how partners should take a draw from the partnership share.
  15. 15
    Financial matters, such as how periodic financial statements and books will be kept and when taxes will be filed.
  16. 16
    The power to be vested in partners to borrow money on behalf of the partnership. How the power is distributed and whether a vote is required to borrow a certain amount.
  17. 17
    Maintenance of records. This entails how and where the records will be kept.
  18. 18
    Meetings. The agreement should clarify when meetings will be held and how many partners will constitute a quorum for meetings.
  19. 19
    The agreement should specify the power of authorizing expenses and the signatures needed.
  20. 20
    The partner time off, including vacations, leaves of absence, and sick leaves should be clearly specified.
  21. 21
    Ownership of assets. The agreement should specify if the partnership owns all assets or whether some are held by the partners.
  22. 22
    Outside activities (those that are restricted and permitted), and the conflict of interest policy.
  23. 23
    Sale or the transfer of a partner’s interest to another partnership, at retirement or another event. It should specify aspects like buy-sell agreements for the partners and the methods involved.
  24. 24
    Non-competition clause. This restricts partners who leave the partnership from competing with the business, within a defined time period and area.
  25. 25
    Continuity of partnership business when a partner dies, leaves, or is terminated as in the case of a buy-sell agreement.
  26. 26
    Expulsion of a partner from the partnership.
  27. 27
    Amendments to the partnership agreement, how and when.
  28. 28
    Severability if a part of the agreement is found to be invalid and doesn’t affect the contract.
  29. 29
    Adherence to state law. This is mainly for the purpose of litigation and establishing the state in which the litigation will be held.
  30. 30
    Mediation and arbitration of the dispute, including mandatory arbitration, if the partners agree to it.

Provide Information On Things You Should Know About A Partnership Agreement

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We compiled 8 vital things you should know about the agreement, which are:

1. Ownership.

This highlights what to do if something happens regarding the ownership. If you sell the business, the agreement should specify which partner will get what and the partnership’s position of including new partners. Here, the agreement states whether there is the option of buying out another partner. Therefore, the agreement should explicitly describe how ownership interests should be handled in different scenarios, including in the event that a partner retires, dies, or in case of bankruptcy. Include a non-compete clause to prevent a partner from competing with the business once he or she leaves.

2. Critical Developments

The agreement should cover for unexpected occurrences, such as when a partner gets sick or is dying. It also covers what will happen in case of a buyout. It should set retirement provisions and circumstances in which you can change the partnership.

3. Dispute Resolution

While no one wants to think about this, things could get ugly between partners, which is why you should consider this in the agreement. There should be a mediation and resolution process if disputes arise as it might save partners from lawsuits.

4. Dissolution Or Exit Strategy

The agreement should show the events that could trigger dissolution and how the affairs that would be affected would be wound up. This includes all legal means of ending the partnership. This is a security if you or your partners can’t agree on the future of the business. You also need to know the state requirements of dissolving the partnership.

5. Decision Making

This is a safeguard since you won’t be agreeing on everything. Therefore, define how daily management and long-term decisions will be made. Define who gets the last say and the type of decisions that require unanimous votes by the partners, and what decisions can be made by a single partner.

6. Contributions

The agreement should clarify what each partner must stake in the formation of the partnership, and the ongoing finances of the business. It should specify how much each partner should contribute to the commencement of the business. Besides, it should state the responsibilities of each partner in the future needs of the business, including equipment, customers, effort, and time.

7. Partner Roles In Signing And Authorizations

There should be a clear understanding of what the offices or managers of the business are authorized to do on behalf of the business.

8. Distributions

The partnership agreement should detail how partners will share profits, how much each partner will be paid. The agreement should also include the salary for each partner.

Conclusion

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Every partnership should have an agreement to make sure that every potential situation is covered for. The partnership agreement is a binding contract, which implies that you need an attorney to guide you to draft it, and also help resolve any future disputes or issues. In most instances, it should stipulate that what matters partners should vote for, their contributions, distributions, what should be implemented, ownership, critical developments, dispute resolution, dissolution or exit strategy, and partner roles in signing and authorizations among other aspects.

However, periodic reviews and additions are paramount and keep up to date with legal requirements. We hope this article has adequately addressed what a partnership agreement is, why it is important, and things to consider when drafting one.

5 Things to Know About Common Law Marriage

Formal marriages, complete with marriage licenses and the signatures of legal officiants/witnesses, are the most recognized forms of relationships today. However, there are also informal relationships — such as a common law marriage — that our modern society recognizes in nine states and the District of Columbia.

A common law marriage is a union between two individuals who live together and present themselves to others as a married couple, without having gone through all the legal proceedings for a formal marriage.

Want to know more? This article highlights the ins and outs of common law marriage, how such an arrangement compares with statutory marriage and five elementary things you should know about common law marriage and its circumstances and consequences.

What Is Common Law Marriage?

Common law marriage, also known as sui iuris marriage, arises if two parties cohabitate without being formally married but, by mutual consent, agree to be husband and wife (or married partners in the case of same-sex couples.) Common law marriage also is referred to as marriage by habit and repute, informal marriage or marriage in fact.

A common law marriage is an agreement between the two involved that they will live with the open assumption of a marital relationship, which implies that both spouses hold themselves to the public as a married couple. The couple in a common law union both recognize it to be a valid marriage, although their marriage has not formally been recorded with a religious or civil registry.

In addition to their mutual consent and an open assumption of the marriage, spouses who wish to prove a common-law marriage must meet additional criteria laid under the legal codes of the state they live in. In most instances, the legal requirements include:

  • Both parties should be at least 18 years old at the time of the marriage
  • The marriage must not be bigamous, so neither of the parties should have been married at the time of their union
  • The marriage is not incestuous, meaning the union cannot be between relatives

However, even when the court finds a marriage to be prohibited, you can still be considered as a “putative spouse” — someone who has lived with a partner under good faith and with the belief they were in a marriage. This happens when a couple forms a common law relationship, but one spouse doesn’t know the other is married, technically, to someone else.

Under the law, a putative spouse has similar rights as a legal spouse regarding the right to property and alimony. Having children together does not make a relationship automatically a common law marriage. The key is whether you regard yourself as a wife or husband.

Understanding common law marriage rights is sometimes confusing. Even the spouses may not know all the ramifications if they decide to terminate the marriage and sort through their individual rights and responsibilities.

Certificate of marriage and two rings

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In a legal dispute, so long as friends and family view the couple as married, then it doesn’t matter what each spouse thinks of the living arrangement or relationship. This means that, upon termination of a relationship, one partner may get his friends and family to support the marriage claim, especially if the tactic involves money.

You cannot annul such a marriage without a full-blown divorce proceeding. And, if you die unexpectedly, your partner may inherit your assets, potentially depriving your biological heirs of the rights to money and valuables.

Common Law Marriage vs. Marriage

Statutory (legal) marriage and common law marriages can be quite confusing as they ultimately seem to be describing the same thing. Yet, there are many differences. Here, we will look at what these two types of marriages have in common and how they differ from one another.

What Is Common Law Marriage?

  • Both partners freely consent to being in a matrimonial arrangement
  • Both parties should be of sound mind
  • Neither of the partners should be married currently
  • Neither of the parties should be under a disability that prevents them from entering into a valid marriage
  • Both parties are of legal age to contract a marriage
  • Partners have parental consent to marry if they are not of legal age
  • In both marriages, partners are subject to legal rights after a breakup, such as property sharing

Differences

Couple wedding rings on leather surface

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A common law marriage arrangement differs from statutory marriage in the following ways:

  • There is no formal ceremony that solemnizes the marriage before witnesses, such as in a church
  • There is no marriage license that the government issues to recognize the marriage
  • No formal certificate is filed with the government
  • Most jurisdictions require that the parties should be living together at the time the marriage is formed
  • Some jurisdictions may require the cohabitation to last a certain period of time, specifically 3 years, for the marriage to be valid
  • Cohabitation alone doesn’t create the marriage, as the partners must intend their relationship to be recognized socially and regarded as legal

5 Things You Should Know

The following are five things you need to know about common law marriages:

1. No Process or Ceremony Needed

To be considered as a couple under the common law marriage arrangement, partners must live together in a marriage-like relationship. (This can include same-sex partners.) There are no legal formalities or requirements that the two people involved in the union have to undergo any process or ceremony in order to formalize the arrangement.

2. Cohabitation Agreements Allowed

Couple interlocking fingers with anchor tattoos

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In this type of marriage, you can agree on a pre-nuptial contract, just like they do in formal marriages. Partners in common law marriages can use the "cohabitation agreement" to protect their property rights, settle financial obligations or even determine what a spouse's entitlements would be if the two agree to dissolve the marriage.

However, just like in domestic contracts, this marriage arrangement will not cover matters concerning the access to or custody of children.

3. Defining Parameters

To be in a common law marriage, the spouses must have lived together for at least three years or for a shorter time if they had a child together and a “relationship of some permanence.”

Generally, courts will consider the lifestyle of the couple, for example: shared accommodation, social interaction, personal and sexual habits, financial support of each other and of any children and how the public and society perceive them. Not all these parameters should be present, however, for a legal system to consider the couple to be in the marriage arrangement.

Even though there is a requirement that the partners must have lived together continuously for about three years, temporary break-ups without a settled intention to end the marriage doesn’t interrupt the continuity of the relationship.

4. Spousal Support

Woman hugging man infront of lake

Image by Rosie Ann via Pexels

If the marriage ends, one partner may have the right to receive spousal support. Although common law marriages are treated differently under the law regarding the division of property, there is an entitlement for spousal support similar to formal marriages.

This implies that if the common law relationship between the partners ends, one may seek spousal support under certain circumstances, such as one partner being unable to support herself or himself after the termination of the relationship.

5. Right to Property

If the marriage ends, one partner may still be entitled to certain rights in connection to the partner’s property. Common-law partners don’t have similar property rights as spouses in a formal marriage. Upon termination of a common law relationship, property such as furniture and other household items continues to be owned by the individual who bought them.

However, in the right circumstances, partners in a common law relationship may still make claims against each other’s property based on “unjust enrichment.” This is due to the concept that one partner in the relationship should not be allowed to profit at the other’s expense, regarding their respective contributions to the union.

One partner can apply to have the other compensate them for the value of services, property and benefits that the other partner received at the expense of the first partner.

Conclusion

An informal or common law marriage arises if two parties live together without being formally married, but both people mutually consent to presenting themselves as married to the public. A common-law couple is legally recognized as married, even though they have not formally registered their relationship as a religious or civil marriage.

Besides their consent and an open assumption of marriage, both spouses should meet legal requirements. They have to be at least 18 years old at the time of the marriage or have a parent's signature if they are underage. The marriage partners should neither have been married at the time of their union to one another. Additionally, the marriage cannot be between related parties.

For a couple to be considered under the common law marriage arrangement, they must have lived together in a marriage-like relationship for about 3 years. There is a legal provision that allows common-law spouses to enter into a cohabitation agreement, which will help each partner to protect his or her property rights.

For those who have lived together fewer than three years, the relationship is still considered legally as an informal marriage if the spouses have had a child together and the relationship had permanence. Those in an informal marriage have the right to spousal support upon dissolution of the relationship.

Additionally, if the marriage ends, common-law spouses may be entitled to certain rights in connection to their partners' property. Common-law partners don’t have similar property rights as spouses legally married, but under the right circumstances, similar rights may be enforced. 

Where and How to Find a Good Business Lawyer

Many people feel like they do not need a business lawyer, at least until they are in trouble. That is when it is already too late. Every business, whether they’re small or big, needs legal expertise at different stages of work and while dealing with clients. Hiring a business lawyer can help you work efficiently and without any legal hassles while saving you a great deal of money that could go into fighting long legal battles, which is something that can be avoided easily with the right preparation.A good business lawyer advises you on everything from obtaining business licences and permits to contract agreements or customer complaints. He/she is, in fact, of great benefit to startups or emerging businesses that cannot afford to lose money because of legal implications.

What Is a Business Lawyer?

an entrepreneur shaking hands with a business lawyer

Business law is also called mercantile law. It refers to the laws that govern dealings between people and business matters. A business lawyer ensures that no laws are violated during these dealings. Wrong decisions, unhappy clients, intellectual property theft, hiring the wrong employees, hurriedly drawn drafts and agreements, or non-compliance with state and federal laws can cause great damage to your businesses. They can spoil your reputation and bring big financial losses. A legal expert can help you prevent or mitigate such problems before they occur.

Why You May Need a Business Lawyer

a woman, sitting beside her partner, shaking hands with a female business lawyers

Formative Aspect

When your business is new, or even if the doors are not even open yet, there are a lot of legal procedures that need to be sorted out before your business can get off the ground. These procedures can seem quite baffling, and any errors may cost you dearly in the future. Startups, especially, do not have a lot of money to spare for such unforeseen or unnecessary circumstances. A business lawyer can guide you every step of the way and ensure that your business has all the legal backing it needs to avoid getting sued by anyone.

Buying a Business

If this situation is where you are starting off, you know that there are many steps involved. A legal expert can help you with the evaluation of the business, make the purchase and acquisition agreements, and ensure the smooth transfer of permits and licenses.

Structural Decisions

As a new businessman, you would like to be in charge of the entire decision-making process. However, it is not easy for one person to understand liabilities, asset values, tax obligations, comply with local rules and regulations, or study the laws that govern employer-employee relationships. A business lawyer has expertise in more than one area and can take some of this burden off your shoulders. This allows you to focus on what you opened the business to do.

Filing Patents

Filing a patent for a new product or service is a complicated and time-consuming process. Hiring a legal expert can expedite the process for you and get it done without any errors on your part.

Preventive Aspect

It is way more cost effective and prudent to prevent lawsuits or complaints from clients or employees rather than dealing with them after the damage has been done. It is the work of a business lawyer to go through all the regulations that are put in place for smooth business operations and oversee your business decisions to avoid any future complications.

Compliance with State and Federal Laws

a rack full of law books used as references of business lawyers

Understanding and complying with local business regulations is crucial, and because there are so many, it may be quite difficult for new business owners to research and adhere to all the rules. Whether your business dealings are interstate or outside the borders of the country, you’re purchasing or selling property outside the state, or you’re paying taxes, you need to be careful and ensure that you are not breaking the law in any region. Along with his/her legal expertise, a business lawyer can do the research for you, save you a lot of time, warn you if there are any discrepancies, and save you numerous financial hassles.Businesses also require expertise and talent from other countries. In such cases, business and immigration laws go hand in hand. Understanding immigration laws allow businesses to hire people overseas as well as have employees visit various branches to contribute to particular projects. A legal expert will know how to best go about this without breaking any federal laws or overstepping any boundaries. Such a professional also ensures the safety of your employees, who trust you as a business owner, in order to keep them away from legal harm.

Drafting of Contracts

Businesses require contracts at every stage of functioning. It is wise to not do any work without a formal contract between the two parties, be it clients, employees, or business associates. Legal experts have a sound knowledge of all that must be included in contract drafts and negotiations. They often have templates that can be used, as well. However, these obviously need to be edited to suit the requirements of one particular business. It is best to leave the nitty-gritty to a business lawyer and focus on areas that need your attention.

Employee Issues

a female business lawyer explaining the labor code to the companies human resource department

Whether it is the hiring process, rules of payment, employee compensation, or the process of letting people go, a legal expert can prevent issues with employees by laying down all the required rules and regulations for a smooth hiring and firing process and keep you safe from expensive lawsuits.In the case of manufacturing and sale of consumer goods, labor laws come into play, as well. Hiring a business lawyer will simplify the regulations for you so that you are able to put into place all the necessary hiring processes, comply with working conditions, distribution requirements and price control, or deal with compensations in case of accidents, whether they are natural or man-made.

Protection of Intellectual Property

For any business to thrive, it is required that their ideas, information about new products and services, marketing campaigns, and advertising campaigns remain confidential. Businesses must have the rights to own and use their ideas and property to profit them. A business lawyer will help your company register and enforce copyrights as well as prevent or deal with intellectual property theft.

How to Find a Good Business Lawyer

the business lawyers studying the contract

When you are setting up a new business, most of the people you are looking to work with are found through your personal contacts or references. While this is not a bad way to find business associates or potential employees, it is not completely safe. There are a few things to keep in mind that will help you find the right person for your commercial requirements.

Sift Through Personal Contacts

This is what most people do, and there is no harm in it. We prefer finding somebody that you personally know or a lawyer recommended by friends and family rather than calling up a total stranger. This is fine as long as you have them vetted out and check if they are able to deliver exactly the kind of work that you require

Use Online Legal Directories

In many states, the lawyer bar associations maintain an updated list of all the licensed legal practitioners in states, along with their area(s) of expertise. Legal help sites can come to your aid, but they are more generic in nature, and it is better to retain a lawyer you can approach all the time, as well as one who knows about your business, specifically. Additionally, one cannot trust all the reviews posted on these sites.

Know What You Want

a reliable lawyer talking on the phone and taking down some notes

You need to find a business lawyer that understands exactly what your business needs and how to go about getting it. It is better to seek out professional help based on an area of expertise, such as intellectual property, share trading, and labor laws. Determine why you need a legal expert and what his/her tasks will be for you. Once you shortlist a few lawyers, ask them the right questions to understand whether they are the right person for your business.

Interact and Enquire

Just reading and knowing the qualifications and area of a business lawyer’s expertise is not enough. It is important to interact with the lawyer you plan to hire. Ask him/her about their work experience, especially in your field of business, and for clients similar to you. Inquire why he/she is working in that domain, specifically, how they would go about working for you, how many people would be involved, how they charge, their mode of communication, possible conflicts of interest with your business, and if they can provide client references.

Conclusion

a business lawyer shaking the hands of an entrepreneur after their meeting with their other companions

All businesses require legal expertise, but there are certain tasks, such as obtaining a business licence, applying for a loan or filing tax returns, that you can handle yourself. As a result, one need not spend money on these moves. However, the objective of hiring a good business lawyer is to save you time and money. Thus, it is necessary to consult with multiple lawyers before you choose the one that is right for you so that your choice works out in your budget, has the right approach, and one is available for you when you need advice. Having a business lawyer makes every task easy for you and ensures peace of mind.

Rental Agreement Signing: 15 Things You Should Know About

Renting a new apartment can be an exciting time. It can also be a stressful one so it is important to make sure that you have done your due diligence when it comes time to sign your rental agreement. The rental agreement is a contract between you and the landlord, the person renting the property to you, and it is meant to cover all the physical items, rights, policies, or expectations that are associated with renting that property.

Since many people do not spend as much time reading this contract as they should, or do not know what to look for, we have reviewed here some major things to pay attention to before signing this important document.

What To Do before Signing Your Rental Agreement

searching for rental spaces

There are a number of things a future renter should do before signing their rental agreement, not least of which is physically examining the property. This may seem fairly obvious, but examining the property together with the landlord is the first step to handling any problems with the property, possible renovations, areas that are not clear, or specific issues like common areas or outdoor spaces. Physically reviewing the property allows you to request that certain issues like renovations are resolved before you rent the property or, at the very least, that language pertaining to these issues is included in the rental agreement.

The period before signing your rental agreement is also a time to make sure that you are fully prepared to enter into a binding contract and that you are able to fulfill your end of the bargain. Contracts of this nature nearly always include a duration of the lease, 12 months, for example, so you need to make sure that you are ready to commit to a 12-month lease, and that you can afford it. Any doubts you have about the property should be resolved before you sign your rental agreement. This is also a good time to meet the neighbors and establish a positive rapport with your landlord or their representative.

Questions To Ask A Potential Landlord

rental agreement between two persons

A smart thing to do before you sign your rental agreement is to come up with a list of question to ask the landlord or their representative. These questions will vary based on your specific situation and the specifics of the property.

If the landlord mentions in passing that pets are allowed, what kind of pets? He or she may allow dogs, but are we talking about a lapdog or a Great Dane? This is a good chance to ask about any weight or breed specifications in the lease.

You notice that there is a dent in the wall of the apartment. Is the landlord going to fix that before you move in? At the very least, the presence of any defects in the property should be noted before you sign the agreement.

In reality, the questions that might be asked by a prospective renter are too numerous to list. These questions depend on your specific situation. Some common questions that renters commonly ask before they sign a rental agreement include:

  • When is the rent due and what are acceptable forms of payment?
  • In what situations would a security deposit be withheld?
  • Am I allowed to have roommates or to sublet?
  • Am I required to maintain (i.e. clean or mow) common areas or outdoor areas?
  • What happens when my lease is up—is there a chance that my rent will magically increase?
  • What is included in the monthly rent?

This is merely a short list of some important questions that renters should consider asking before they sign their agreement. We all understand that sometimes you’re in a rush to sign an agreement and move in. Maybe the place is great and you don’t want someone else to swoop in and nab it, but you need to protect yourself. Asking the right questions before you sign an agreement is the first step to doing that.

15 Things To Look For Before Signing A Rental Agreement

searching for rental homes

Some things you should look for in your rental agreement will be covered in the questions you have asked your future landlord (or should have asked). This is not a case of being redundant, but of making sure that critical aspects of renting a property have actually been stated in the agreement. This is not only to make sure that you and the landlord are on the same page but to protect you should any disagreement arise or if you decide to move.

When you surveyed the property, you should have noted any issues. These are important to keep in mind when going over the agreement. What follows is a list of 15 things you should look for before signing a rental agreement.

Read The Contract In Its Entirety

This may sound like a no-brainer, but many renters make the mistake of assuming that things they discussed with the landlord will be in the agreement, or that they understand the terms of the agreement without actually having read the document. To protect yourself and spare yourself any potential headaches in the future make sure you read the rental agreement in its entirety, and we don’t mean speed read it in two minutes either.

Understanding The Rent

This was mentioned in the questions you should ask the landlord. It is important that you and the landlord are on the same page in terms of how much the rent is, when it is due, and how you are expected to pay it (check, online, cash, etc.). All of this should be clearly stated in the agreement.

What Is Included In The Rent

Some rental properties may include some amenities in the rent, like cable, access to a common area, like a roof deck or a park and the like. Make sure all of that is mentioned in the agreement.

Utilities

Utilities are a biggie. Many of you may have lived in cities where the utilities may cost nearly as much monthly as the rent. Make sure that you understand what is covered by rent and what is not, also whether the utilities are already set up by the landlord or if you are required to get things turned on. Are you paying the water bill or is he or she?

Rental Property Policies

The landlord may have said that your komodo dragon is okay to stay in the apartment, but does it actually say that in the rental agreement? Make sure that any policies of the property are clearly stated in the agreement and match what the landlord may have told you.

Pets

Pets are another big issue. Many renters have them and properties vary in their policy on pets. The agreement should clearly state what breed or species of pet is allowed, whether there are any weight requirements, how much extra a pet deposit or monthly pet fee will be, etc. In reality, if you have a pet or are planning on getting one, you should read this area thoroughly.

Renewal Process

Many leases have a 12-month period of the lease. Although the period may vary depending on the property, it is important that you understand what will happen at the end of that period. Can you renew? Will it renew automatically? Is there a chance that your rent might go up? Also, make sure to ask if your lease will be shortened if you choose to not renew.

Renter's Insurance

Renter's insurance is always a good idea. Is this included in the rent or do you have to pay for it? Renter's insurance doesn't only cover your own belongings. Many times it can help cover the costs that a landlord might pass onto you if you are found responsible for something such as fire damage to the unit.

Security Deposits

Security deposits are important because most people want these back when they move, especially if they took good care of the property. Make sure any policies regarding security deposits are clearly stated in the agreement.

It can be particularly useful to look for reviews of the potential landlord. Some less reputable landlords claim to give back security deposits in the contracts, but never return the deposits in practice. These unscrupulous landlords will claim normal wear and tear as excessive damage to avoid returning the deposit.

Heating And Air Conditioning Units

AC units may not be important if your apartment already has one, or if you are renting an entire property, like a house, but if you live in a high-rise, these may be an issue. Some properties prohibit items jutting outside of windows so make sure you read and understand this part of the agreement.  

Additionally, if you rent an older single-family home, the heating unit could pose problems.  If your new rental has oil heat, and you turn on the heat without knowing that no oil is left, you run the risk of potential damage to the heater. Check to see if you would be on the hook for replacing appliances in situations like these.  You will also want to estimate costs for heating the home in winter prior to signing the lease to be sure that it will fit within your budget.

Roommates

It is common to have roommates. It is even common to sublet properties. Although you may have discussed this with the landlord, make sure any policies in these regards are clearly stated in the agreement before planning for these types of arrangements.

Common Areas And Outdoor Spaces

Some properties may come with common areas, like gardens or pools, or outdoor spaces like yards and terraces. Make sure that any expectations regarding these areas are clear in the agreement. If there is a yard that you will be expected to maintain, find out if a lawnmower and weed whacker will be provided or if you will be expected to buy your own. If you are expected to buy your own lawnmower, is there a shed or storage area that you will be able to store your mower away from the elements?

Renovations

Maybe during your walk-through of the property, you notice that a new paint job is needed, or the landlord promised to bring in a new fridge. Make sure that if the landlord has not already addressed these promises that they are mentioned in the agreement.

Apartments That Are Furnished

Some apartments are furnished. If the one that is, make sure that any furnishings there at the time you rent are clearly listed and described. This will save you any headaches later when (or if) you decide to move. After moving in, it can be helpful to take detailed pictures of any damage present on the furniture for your records.  You don't want to be held financially responsible for items that were damaged prior to you moving in.

Ask Questions

Yes, we talked about this one, but it is important that all issues are perfectly clear before you sign that rental agreement. Make sure anything you have discussed with the landlord is in the rental agreement. This is your last chance!

Conclusion

family

Renting a new place does not have to be a hassle. This is an opportunity to turn your life in a positive direction by getting a fresh start somewhere else. You are turning a new leaf, but you want to make sure you’re not turning to the wrong page. Making sure you have asked questions and carefully read the rental agreement will ensure that you are taking a step in the right direction with your new home.  

If the rental agreement seems to not match what the landlord claims and the landlord resists changing the agreement to match their promises, it might be best to pass on the property and find a different option. It can be frustrating to pass on what seems like the perfect apartment, but the last thing you want is to be stuck renting from an untrustworthy landlord for the next year. Do yourself a favor, make sure it's in writing. Walk away if it's not.

Breach Of Contract: Different Types Of Work That You Should Know About

No one wants to be a party to a breach of contract. Small businesses are especially vulnerable when a violation occurs.  Consider the costs and repercussions if someone sues you or even if you are the aggrieved party—all parties usually lose more than they gain when faced with legal disputes. You can only have a breach of contract on a valid contract. While it is optimal to have a lawyer review your contracts, it is not always possible nor is it a requirement by law. The courts have measures to assess whether there is a breach of contract. Not all contract violations invalidate a contract. 

What Is A Breach Of Contract?


A breach of contract is a violation of a legally binding agreement where at least one party fails to perform one or more contractual obligations. If you are considering suing someone, a court will first evaluate your contract to see if it meets the criteria for a breach of contract case.

First, you must prove your contract is legally valid. You must then demonstrate you fulfilled your part of the contract. If you could not perform all of your contractual obligations, you must prove that the breach hindered your performance. Furthermore, you have to show you suffered damages because of the breach.

WHAT CONSTITUTES A CONTRACT?

You do not need a lawyer to construct a legal contract. The contract can be a verbal agreement, something written on a dinner napkin, or it can be a 50-page agreement written in a lawyer’s office. Even if you have a formal agreement drawn up with lawyers present, it still needs to pass the validity test. Your contract is only valid if the following criteria are met:

  • An offer is made
  • The offer is accepted
  • Consideration exists
  • There is a legal intent
  • Both parties are competent
  • The contract is fair to both parties

The party making the offer must clearly communicate the proposition. All parties in the contract must agree on its terms. The offer details should be easy to understand, and both parties must interpret the conditions the same way.

The contract must also have consideration, which means it should be mutually beneficial. For instance, if you want a web design company to create your company website for a fee, then the contract has consideration for both parties.

Another critical element to a valid contract is the legal intent. For instance, if you pay someone to rob a bank and the party takes your money but does not go through with the robbery, you can’t sue the breaching party because robbing a bank is illegal.

The parties signing the agreement must have the mental capacity to understand what they are signing. You can’t enter into an agreement with someone who cannot understand the agreement (including minors). All parties to a contract must be of clear and of sound mind. You cannot enter an agreement while under the influence of any mind-altering agent like drugs or alcohol.

Finally, a contract is not valid if it is not fair. Going back to the website design firm example, assume the design firm owner is a college student who needs money to pay college expenses. You take advantage of his situation and pay him $500 per month for a year to complete and maintain the website. However, the student works 40 hours a week. Your contract is invalid because it is not fair to both parties

Types Of Contract Breaches


breach of contract agreement paper and a pen

Once you determine you are dealing with a breach of contract, you still have to determine the kind of breach that occurred. There are four contract breaches:

  • Material
  • Fundamental
  • Anticipatory
  • Minor

What Is a Material Breach?

A material breach is the most severe type of contract breach and deems a contract “irreparably broken.”  A contract breach is a material breach if one or more parties in the contract failed to perform their duties as outlined in the contract. Proving a material breach is difficult. The court determines the answer to the following questions before declaring a material breach:

  • Is the aggrieved party deprived of the “heart” of the deal?
  • Would compensation take care of the aggrieved party’s loss?
  • What will the breaching party lose?
  • What are the chances that the breaching party can and will fix things?
  • Was the breach willful or in bad faith?
  • Is the aggrieved party “ready, willing, and able” to perform?
  • Does the contract include a clause to deal with a material breach?

A contract breach would deprive the aggrieved party of the “heart” of the deal if the party did not enjoy the core agreement. For example, you paid the web design company $20,000 for your website. They completed all the site's core functionality and design, but the content contained obvious grammar errors and some broken links. The courts would consider the errors a material breach since you received all the required features. That would not deprive you of your part of the core deal. You still can pursue corrective measures, however, it does not qualify for material breach.

If the breaching party can compensate the aggrieved party for the breach, then the courts would enforce the contract. The court also considers what the breaching party would lose if the contract were void. You paid the web design company $10,000 dollars to start the website. A week before the project is complete, you tell them you are not happy with the product and decide you will not pay the final $10,000. The courts would not consider a contract breach since they completed most of the work.

If possible, the courts will try to uphold the contract, so unless the breaching party does not have the capability of taking corrective actions or acted unethically, you cannot cancel the contract. The last thing the courts will test is the contract itself. If there are provisions in the contract for handling breaches, the courts will enforce the contract.

What Is a Fundamental Breach?

A fundamental breach is one where the breaching party failed to complete a task so essential to the contract it hindered the aggrieved party from fulfilling their part of the agreement. If you are having a website built, but you do not give the contracted party access to your web servers, then they cannot deploy your site.

What Is an Anticipatory Breach?

You hired a web design team to launch your website by December 1st. It takes about three months to complete the site. It is now November 3rd, the team has not worked on the project and you no longer trust the project will make the launch date. You can sue before any violation occurs. An anticipatory breach is a breach that has not yet occurred, but it is clear the offending party will not perform their duties.

What Is a Minor Breach?

A minor breach, also known as a partial breach, is when there are minor contract violations. In the example where the web design company finished most of your website but the content contained errors, it would be a minor contract breach.

What Happens In A Breach Of Contract?


signing

The journey is not over once you have determined you have a compelling breach of contract case. Not all contract breaches are treated the same. The courts consider an array of remediation tactics. You may get monetary remediation or contract remediation.

Common Remedies for Breach of Contract

The legal remedies depend on factors such as the breach, its severity, and how much work both parties completed. Compensatory damages allow you to recover the money you are owed while punitive damages penalize the breaching party their wrongdoing.

People use incidental and consequential damages interchangeably, however; they have two distinct meanings. Incidental damages are the expenses the non-breaching party incurred while trying to avoid further losses. Consequential damages are expenses that would have been avoided if the breach did not occur.

Liquidated damages are damages the parties outlined in the contract should a breach occur. Contracts usually use liquidated damages when the losses are hard to prove (like intellectual property). Some contracts include a clause that forces the breaching party to pay attorney fees. You cannot recover attorney fees unless the contract permits it.

Other Remedies for Breach of Contract

Along with monetary damages, there are other options available to remedy a breach of contract. The court can force both parties to fulfill their obligations under the original agreement.

It is possible that a judge would rescind the contract. This means the contract is treated as if it never existed and all monies are returned to the rightful party. Contract rescission can occur in the following situations:

  • Both parties agree to it
  • The contract is illegal
  • It is evident that one party has no intention of fulfilling their contractual duties

Contract reformation is a viable option if both parties agree a contract rewrite to match the original intent.

Conclusion


corporate man reading

Legal contract disputes can get complicated. Make sure your agreements are legally binding and try to settle disputes before going to court.  

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


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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.

What Is The Purpose Of A Durable Power Of Attorney?

Power of attorney gives a trusted individual the right to make decisions and take actions on your behalf. A durable power of attorney is most often used by seniors to give another person the authority to act in their name in medical and legal matters, including those about property, taxes, business deals and real estate. It is also known as a continuing power of attorney because it will continue even if the principal; the person granting the authority, becomes mentally incapacitated or incompetent.

The documents drawing up a power of attorney (POA) can be particularly about the purposes and duration for which it is conferred. The agent is usually a trusted friend or close relative who can be relied upon to make decisions in the best interest of the principal when he or she can no longer do so. For seniors and their families, it’s best to plan and set up a durable power of attorney, especially for medical matters, well before it will be needed.

What Is a Durable Power of Attorney?

discussion of what is written in the document

A durable power of attorney is also known as a continuing power of attorney and remains in effect even if the principal becomes mentally incapacitated and incapable of taking or communicating decisions. Different states have their power of attorney forms which state the conditions and duration of the POA,as well as the start date. These forms must be filled out completely and correctly for the POA to become effective.

What Is a Power of Attorney?

Power of Attorney gives a trusted individual the authority to act on your behalf. It can pertain to legal or medical matters or just be limited to a single task. The scope and duration of the POA can be specified in the document. The person delegating the authority is called the principal, and the individual who is given the authority is called the agent or attorney-in-fact.

Types of POA

There are two types of POA: medical and general. General Power of Attorney gives the agent the authority to act for the principal in financial and legal matters like property and real estate, business, taxes, lawsuits and in dealings with the government agencies such as applying for benefits.

Medical Power of Attorney typically gives the agent the authority to make decisions regarding medical matters and healthcare. It is sometimes named differently in different states and may be known as Health Care Proxy, Designation of Health Advocate, Designation of Healthcare Surrogate, etc.

Both types of POA can continue even if the principal becomes mentally incapacitated if the word “Durable” is added.

Defining the Scope of Power of Attorney

shaking hands of approval

The scope of POA can be defined so that it is limited to a specified matter or duration. The limits are clearly specified in the document. A durable power of attorney remains effective even if the principal becomes mentally incompetent. The state of being mentally incompetent is defined as the inability of the principal to make an informed decision or of communicating such decisions. In fact, this is why seniors and their families should plan and set up durable POA well in advance of it becoming necessary.

Mental incapacitation can result from mental illness or physical injury which affects the functioning of the brain. This includes strokes, coma, paralysis, etc. For seniors, it may stem from the onset of diseases like Alzheimer’s and dementia. In general, certification from a medical doctor is required for a POA that springs from mental incompetency.

How Long Does Durable Power of Attorney Last?

The durable power of attorney comes into effect when the form is properly completed unless specified otherwise. Alternatively, a “springing” durable power of attorney springs from an event such as the mental incapacitation of the principal, which is specified in the document. Durable POA typically ends with the death of the principal unless an ending date is specified.

When Is a Durable Power of Attorney Used?

A durable power of attorney is typically used when seniors need someone else to make decisions and take actions on their behalf in medical and legal matters. This may be done in the event of a sickness or injury or just because the principal needs help with managing affairs such as medical care, bills, and legal matters. It continues if a senior cannot make informed decisions about these and other matters. For seniors and their families, it is usually best to plan and establish a durable POA well before it will be needed.

Durable POA may also be needed if an injury or illness makes it impossible for the senior to communicate such decisions. For example, a disease such as a stroke may make it physically impossible to speak or communicate by any other means, even if mental functions are unimpaired. Many seniors may just choose to delegate durable POA to a trusted individual because they need someone to act on their behalf in making decisions regarding medical care, managing social security, applying for benefits, paying bills, etc.

Planning Ahead

Seniors and their families should plan and prepare for a durable power of attorney, especially for medical matters. In case of an accident or injury, or the onset of Alzheimer’s or dementia, it will save time, money and trouble if a trusted family member or friend can step in and take over the decision about medical care and treatment. It’s best to be proactive rather than wait too long and risk a situation where the principal is no longer capable of making a decision about choosing an agent.

If a senior does become mentally incompetent due to injury or illness without establishing a durable POA, relatives will have to go to the courts to make decisions about their medical care and treatment. This can be expensive and time-consuming and distract their efforts at a time when the medical care of the individual should be the highest priority.

What Are the Advantages and Disadvantages of a Durable Power of Attorney?

Durable POA is a relatively easy way for seniors to get help in managing their affairs without the intervention of a court. Even if there is no serious medical condition or emergency, it can be helpful to have someone who can manage financial and legal matters for them. It’s important to have someone who can make decisions about medical treatment and long-term care if and when the need should arise.

On the other hand, there is great potential for fraud and abuse in this position of trust, and unfortunately, this does happen very frequently. One way to prevent against fraud and embezzlement is to specify the limits of the durable POA.

Benefits

Durable POA allows your agent to help you make decisions about medical care and deal with financial matters like bank accounts, taxes, social security, insurance, property, etc. Your agent can deal with third parties like banks, credit card companies, and government agencies and programs like Medicare and social security on your behalf. They will have to provide a letter of attorney to establish this authority.

A durable power of attorney is a relatively easy way for seniors to manage their affairs without the intervention of a court. The terms and limits can be specified. Durable POA ends with the death of the principal, which means that the agent does not have any control over the estate unless that is specified elsewhere.

Disadvantages

While there are many benefits for seniors in giving durable POA to someone they trust, there is always the risk that this trust may be abused. Fraud does happen, and it can be a way for an agent to embezzle funds and transfer property to themselves or others. They can even change the names of beneficiaries on life insurance policies and annuities to benefit themselves.

In some cases, an agent may not be acting from malicious intentions but still fail to carry out the wishes of the principal. As in all matters, mistakes can be made. If fraud is detected, by the principal or the heirs, the agent may be sued for the return of assets as well as damages.

Can Durable Power of Attorney Be Revoked?

A durable power of attorney can be revoked at any time by the principal provided he or she is of sound mind. A properly-drafted statement of revocation will have to be given to the agent as well as to any third parties with whom the agent has had dealings in that capacity. If the agent is a spouse, the durable POA is automatically revoked in case of divorce.

Durable POA is automatically revoked on the death of the principal, and the agent has no control over the estate unless specified elsewhere.

Conclusion

A durable power of attorney helps seniors by giving a trusted individual the authority to act on their behalf in medical and legal matters. It can be important in situations where the principal becomes mentally incompetent to make informed decisions due to injury or illness. Durable POA is a way for seniors and their families to manage their medical and legal affairs without the intervention of the courts.