Immigration Law
Next Steps After the H-1B Lottery
Originally posted 05.5.19, content updated 01.10.24 After the U.S. Citizenship and Immigration Services (USCIS) finishes the H-1B lottery, they will send out receipt notices, process and adjudicate petitions, send out approval notices, and then send reject notices along with the filed petition and filing fees.[1] Prior to sending out a notice of receipt, the USCIS must first verify the fees and signatures and make sure the form has been filled correctly. If properly filled, USCIS will stamp the petition with the date of arrival at the service center. If the application is not properly filled out, they will reject the petition and return it to the employer. A paper file will be created for all petitions that were properly filled. The file is sorted into cap and non-cap cases.[2] Notice of Receipt The first step the USCIS takes after it finished the H-1B lottery is to send out notices of receipt to petitions that were selected in the lottery. For petitions not selected in the lottery, nothing will be sent until the rejection notice. If you filed for premium processing, then you would first receive an email receipt notice and then a hard copy notice of receipt in the mail. Notices of receipt for H-1B master’s cap petitions are usually sent prior to the H-1B bachelor’s cap petitions. Once you receive a notice of receipt you can check your status on the USCIS website by using your receipt number.[3] Adjudication Process Once the receipt notices are all sent, the USCIS will begin to adjudicate petitions. Depending on where your petition was filed, you will receive a USCIS number beginning with WAC or EAC. WAC is the California Service Center and EAC is the Vermont Service Center.[4] Once the petition is adjudicated there are several scenarios that could occur: your case could be approved; you could receive a Request for Evidence (RFE), submit a response and eventually get a notice of approval; or after submitting the response to the RFE, your petition could be denied. Receiving an approval notice – After you receive your notice of receipt you will get an approval notice. For premium processing you will first receive an approval notice by email and then by mail. For regular processing you will only receive the notice by hard copy mail. Receiving an RFE - If you receive an RFE you will need to carefully review the notice and respond by submitting the additional evidence required. This process can take several weeks to months. After the response is sent, you will either receive an approval notice or a denial notice. Reject Notices Sent For the H-1B petitions that were not selected in the lottery, the USCIS will send a reject notice. These notices are not sent immediately. Rather, you will receive it only after all of the premium processing petitions are taken care of and the notices of receipt have been mailed to H-1B petitions that were selected in the lottery. In the past, these notices were not sent until mid to late July. You will also receive the rejected petition and filing fees that were submitted. [1] https://redbus2us.com/steps-after-h1b-lottery-processing-approval-flow-chart/ [2] https://redbus2us.com/h1b-visa-petition-processing-steps-at-uscis-service-center-adjudication-info/ [3] https://egov.uscis.gov/casestatus/landing.do [4] https://redbus2us.com/h1b-visa-receipt-case-number-meaning-check-status/
January 10, 2024
Intellectual Property
Behind the Headlines: Understanding the Nuances of Mickey Mouse's Public Domain Status
Public Domain Day is a relatively new celebratory event observed on January 1. The purpose of this day is to celebrate the entry of works that were protected by copyright into the public domain. Before Public Domain Day, articles routinely appear reporting on the works entering the public domain name. In recent years, works entering the public domain have included The Great Gatsby (which became the basis for a musical that is likely heading to Broadway), The Jazz Singer, Metropolis, and Winnie-the-Pooh. Before this year's Public Domain Day, articles heralded Mickey Mouse entering the public domain. The implication, of course, is that Mickey Mouse will thus be free for everyone to use — after all, isn't that what it means when something enters the public domain? Not necessarily. Mickey Mouse is not necessarily entering the public domain, but his first appearances in two shorts, Steamboat Willie and Plane Crazy, are. Anyone wanting to use Steamboat Willie or Plane Crazy is free to do so. Either (or both) can be shown without permission from or the need to pay royalties to Disney. The same may be true of the version of Mickey Mouse shown in Steamboat Willie and Plane Crazy. That version of Mickey Mouse is in black and white, does not speak, and does not wear red pants. However, like many other well-known characters (Sherlock Holmes and James Bond, for example), Mickey Mouse has changed over time and has traits and characteristics that are still protected by copyright; only the earliest works featuring Mickey Mouse are now in the public domain. So, Mickey Mouse, as he appeared in Fantasia, is still off-limits. This is why the trailer for the recently announced slasher film Mickey's Mouse Trap uses the Steamboat Wille version of Mickey Mouse as its villain. The survival horror game Infestation: Origin also features the Steamboat Wille version of Mickey Mouse as its villain. That version of Mickey Mouse also appears set to be the villain in another recently announced untitled horror film. There is another reason Mickey Mouse is not free for everyone to use. Mickey Mouse is undeniably a symbol of Disney, and a consumer seeing goods or services being offered in conjunction with Mickey Mouse is likely to believe that those goods or services are associated with or endorsed by Disney. In other words, Mickey Mouse functions as a trademark. Indeed, Disney has multiple trademark registrations for Mickey Mouse (and for Minnie, Goofy, Pluto, Donald, and many other characters), and any effort to use Mickey Mouse to indicate the source of a product or service will likely be met with a claim of trademark infringement. Moreover, Walt Disney Animation Studio adopted a clip from Steamboat Willie as its logo, strengthening its ability to claim the early version of Mickey Mouse as a trademark. Practical considerations will also limit the availability of Mickey Mouse. Disney is no stranger to litigation and is positioned to impose significant costs on anyone it believes is using more of Mickey Mouse than they are entitled to use. In fact, Disney may very well seek out cases to litigate to concretely establish the scope of its rights in Mickey Mouse (the estate of Sir Arthur Conan Doyle did this with respect to Sherlock Holmes, resulting in a ruling in 2014 that at the time, certain of Holmes' characteristics are in the public domain and that certain of his characteristics are not). So, while we can celebrate the entry of Steamboat Willie and Plane Crazy into the public domain, one shouldn't assume that Mickey Mouse is likewise now in the public domain. The only sure thing to come from such an assumption is litigation, as it has been reported that Disney has announced its intention to continue to protect its rights. If you have any questions about using Steamboat Willie, Plane Crazy, or any other work that is in the public domain, reach out to Offit Kurman's intellectual property group for a consultation.
January 9, 2024
Family Law
Navigating the Path of Divorce Post-Holiday Season
A Guide to Moving Forward Divorce is a highly emotional process, and the holidays may offer a temporary reprieve from the intensity of these emotions. However, once the festive season concludes, individuals may find themselves emotionally prepared to confront the challenges of divorce. Once the New Year begins, it may become clearer that the issues within the marriage are insurmountable. Taking this time to reflect can provide individuals with the clarity and determination needed to initiate the divorce process. Many couples choose to delay divorce proceedings until after the holidays to maintain a sense of normalcy for their children. Proceeding with divorce after the holidays allows parents time to begin working on creating a stable schedule and supportive environment for their children as they navigate the changes ahead. The holiday season often comes with increased spending, and couples may delay divorce proceedings to avoid the additional financial strain during this time. Waiting until after the holidays can provide individuals with an opportunity to assess their financial situation, plan for the future, and make informed decisions about the division of assets and financial responsibilities. Post-holiday divorce proceedings allow individuals to set realistic expectations for the process ahead. It provides an opportunity to gather necessary documentation, consult with legal professionals, and develop a realistic timeline for the divorce proceedings. By approaching the situation with a clear plan, individuals can reduce stress and uncertainty. Consulting with legal professionals is a crucial step when proceeding with divorce. After the holidays, individuals can begin to gather necessary documentation, such as financial records, to facilitate the legal process. Seeking legal advice early on ensures that individuals are well-informed about their rights, responsibilities, and the potential outcomes of the divorce. While the decision to proceed with divorce is undoubtedly challenging, waiting until after the holidays can provide individuals with the time and space needed to make informed choices. By reflecting on the state of the relationship, considering the well-being of children, and planning for the financial and emotional aspects of divorce, individuals can navigate this difficult journey with greater clarity and resilience.
January 8, 2024
Immigration Law
U.S. Visa Options for Foreign Businesses and Entrepreneurs
Originally posted 03.22.20, content updated 01.8.20 This article will explore the L intracompany transfer visa and the E treaty investor and trader visa. Foreign businesses regardless of nationality can send executives, managers, and other workers to work for existing or new offices in the U.S. under the L visa category. The E visa category is available only to businesses and nationals of certain countries that have treaties with the U.S. What you Need to Know About the L-1 Intra-Company Transfer Visa The L-1 is a nonimmigrant, intracompany transferee visa classification. The L1 visa permits key professional employees to transfer from an overseas office to an existing office of a parent, branch, affiliate, or subsidiary of the same company in the United States or, alternatively, to set up a new office. The L-1A allows for a U.S. employer to transfer an executive or manager. The L-1B is for an employee with specialized knowledge. Title 8, Code of Regulations (8 CFR) defines an intracompany transferee as someone who has been employed abroad continuously for one year (by the qualifying entity) and within the three years preceding their L-1 application and admission into the U.S. Individuals who take brief trips for business or pleasure (on B-1 or B-2 visas) will not be viewed as interrupting their one year of continuous employment. Requirements for Eligibility The employee must have worked for at least one year out of the preceding three years prior to the application and be seeking to enter the U.S. to undertake work in the same or similar capacity. That there is a qualifying relationship between the foreign company and the U.S. company, meaning that there needs to be common ownership and control. If you are coming to the U.S. to setup a new office, evidence will also be required to show the establishment of new premises, for example, a lease for office space, sales contracts and copies of applicable business permits etc. For larger employers, prior approval may already have been obtained under what’s known as a Blanket L petition. This permits multiple key personnel to apply for L1 status without waiting for individual USCIS petition-approval. However, to obtain a blanket petition, there are certain regulatory requirements which must be met, in particular that the company: Has transferred ten L1 managers, executives, or specialized knowledge employees to the United States in the previous twelve months, or Has U.S. subsidiaries and affiliates with a combined annual sales of at least $25 million, or Has a U.S. workforce of at least 1,000 employees. L-1 Visa Terms Family Members: The transferring employee may be accompanied or followed by his or her spouse and unmarried children who are under 21 years of age. Such family members may seek admission in L-2 nonimmigrant classification and, if approved, generally will be granted the same period of stay as the employee. Period of Stay: Qualified employees entering the United States to establish a new office will be allowed a maximum initial stay of one year. All other qualified employees will be allowed a maximum initial stay of three years. For all L-1A employees, requests for extension of stay may be granted in increments of up to an additional two years, until the employee has reached the maximum limit of seven years. Restrictions: You must work for your employer and solely your employer during your time in the U.S. Examples Law firms overseas wishing to set up offices in the U.S. can use the L visa category to set up new offices in the U.S. These do not need to be staffed by U.S. lawyers as long as they are not providing legal services and are engaged in marketing activities. Manufacturers of wine who sell wine to the U.S. can set up marketing offices in the U.S. Tech firms who develop IT products and service U.S. customers. What you Need to Know About the E Treaty-Trader Visa E-1 Treaty-Trader Visa The E-1 Treaty Trader visa is a nonimmigrant classification that allows for a foreign national of a treaty-trader country (a country that maintains a treaty of commerce with the U.S.) to be admitted into the U.S. for the purpose of engaging in international trade. This visa is applicable to individuals or employees of a qualifying organization or company who will be engaged in international trade. Trade to be considered for this category includes both physical movements of goods or transportation and non-physical services (including banking, insurance, tourism, journalism, or technology). E-1 Requirements for Eligibility Individual They must be a national of a qualifying treaty country. They must show that they intend to engage in “substantial trade.” The United States Citizenship and Immigration Services (USCIS) states that this generally refers to, “the continuous flow of sizable international trade items, involving numerous transactions over time.” They must carry out “principle trade,” meaning at least half of all trades are between the U.S. and the designated treaty country. They must prove intent to return to their home country at the end of the visa. Employee They must be the same nationality of the principal employer and the principal employer must have the nationality of a qualifying treaty country. They must meet the definition of an “employee.” They have a supervisory or managerial role that requires specialized knowledge or skills. The employer must be either in the U.S. on a current E-1 visa or if applying outside of the U.S., they must prove that they can meet the E-1 qualifications. E-1 Visa Terms Family Members:Spouses and unmarried children (under the age of 21) can be granted E-1 nonimmigrant visas as dependents of the treaty trader or employee. They do not need to have the same nationality as the qualifying treaty country. Period of stay:Those with E-1 status are allowed to stay for a period of two years. Extensions of two years are allowed, with no limit to the number of extensions as long as the treaty trader or employee can continue to show that they qualify, including proof of intent to return to their home country. An E-1 visa holder may travel outside of the U.S. and will likely be granted a two-year extension upon their re-admission into the U.S. However, this also means that family members who are dependents of the treaty trader or employee will also need to travel abroad and reenter the U.S. for an automatic two-year extension. Restrictions:The E-1 visa holder may only work in the area in which they have been approved for when their classification was granted. However, it may be possible for them to work for their qualifying employer’s parent company as long as there is an established relationship among the organizations, the employment requires executive, supervisory, or essential skills, and the terms of the employment have not otherwise changed. E-2 Treaty Investor Visa One alternative to the E-1 Treaty Trader visa is the E-2 Treaty Investor visa. For those with significant funds to invest and from a treaty trader country, this may be an option. There are two ways to apply for an E-2 Treaty Investor Visa. If you are in the U.S. on another status, you can file a petition with USCIS to change your status to an E-2 Visa. You must file an I-129 form, complete the E-2 visa supplement, and provide all documentation required to support your E-2 visa request. If your petition is granted you will be in E-2 status which typically lasts two years. To change the status of any dependents that are also in the U.S., you must file an I-539 form. If you wish to petition for an E-2 visa and are outside of the U.S., you will need to apply through a consulate. You will file an online application DS-160. You will also need to complete a DS-156E supplement. Instructions on how to do so are outlined on the website of the relevant consulate. Documentation to include is typically the same as those you would submit if filing in the U.S., however you should still check with the consulate to see if other documents are required. Visas are typically granted between 2 and 5 years and allows for you to leave and enter the U.S. for travel. If you have dependents, they will file separate DS-160 applications. E-2 Requirements for Eligibility The applicant must be a citizen of a treaty country. This visa is only available to individuals from the countries that the U.S. has a treaty agreement with. Visit the Department of State website to view the complete list. You must have invested or be in the process of investing funds. There are three requirements for this investment criteria:You must show legitimate possession and control of funds. The funds to be invested must have been obtained lawfully. You must provide evidence on how you acquired the funds, either earned or as a gift. Some examples of evidence include tax returns, bank statements, documents to support source of money (e.g. proof of sale if you sold property) investment accounts, etc. This may be challenging in some countries that do not have records available. All funds invested are subject to risk and loss. This provides proof that you are irrevocably committed. At risk money includes credit card, debit, or other loans as long as the debts are not secured by business assets. You must be close to starting the business. Although no work can be done prior to the visa approval, the business should be ready. This may include a signed lease, a business bank account, an established website, and having purchased everything needed to start the business. You must be in a position to develop and direct the business. The visa applicant must be the one to direct and run the business. This also means that the applicant must have the appropriate education or experience necessary for the position and business. Your investment must be substantial. The U.S. Citizenship and Immigration Services (USCIS) has not defined what they mean by “substantial,” and there is no set minimum or maximum amount. This depends on several variables, including the total capital of investment in relation to the total amount required to set up the business. Only working capital (not cash sitting idle in a bank account) will be considered by the USCIS as part of an investment. Your investment and business cannot be marginal; meaning, you cannot start a business just for you and your family. There must be a business plan in place to show growth over a 5-year period or that you plan to hire employees. You must intend to return to your home country after the visa expires. To document this, provide a signed affidavit stating such. You do not need to show ties to your home country. E-2 Visa Terms Family Members: E-2 derivative visas are available for the spouse and children (under 21) of the E-2 Investor. Children may attend school in the U.S., but unlike the spouse, they are not authorized to work. Spouses are eligible to work by applying for an Employment Authorization Document (EAD). Period of Stay: If you received E-2 status through change of status, it will generally last two years. If processed at the consulate, the visa can last five years. Restrictions: A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. Examples Following the previous approval of an E-2 applicant by Mr. Syed, a local Korean restaurant business wanted to add a new investor. The initial E-2 applicant was a student at a local business school who had worked for her family’s restaurant business in Korea. She wanted to establish her own restaurant here in the United States. She also wanted to bring an essential employee to work in the restaurant. Three years later, her business was successful, and she wanted to add a second investor. Given his success in the initial application, she returned to Mr. Syed, where he was able to obtain an E-2 visa for the new investor. With their business expanding, Washingtonians will be able to sample a range of Korean delights.
January 8, 2024
Family Law
What Happens to My Business During Divorce?
Divorce is a challenging and emotionally charged process, and when business ownership is thrown into the mix, it can become even more complex. For business owners, the stakes may be high, as the outcome of a divorce can significantly impact the future of their business. One of the initial steps regarding a business is to value the business or the owner’s interest in the business. Business valuation often involves assessing the company’s financial statements, assets, liabilities, and future earning potential. This process can be intricate and usually requires the expertise of financial professionals, such as forensic accountants or business valuation experts. In many jurisdictions, marital assets, including businesses, are subject to equitable distribution. Equitable distribution does not necessarily mean equal distribution but rather what is deemed fair and just by the court. Factors such as the contribution of each spouse to the business, the length of the marriage, and each party’s financial and non-financial contributions are considered during this process. There are several potential outcomes for the business in a divorce: One spouse may choose to buy out the other’s share of the business, allowing them to retain sole ownership. This buyout is typically based on the valuation of the business and the agreed-upon terms negotiated during the divorce proceedings. In some cases, divorcing spouses may opt for continued co-ownership of the business. This arrangement requires a well-defined and often legally binding agreement outlining each party’s responsibilities, decision-making authority, and financial contributions. Another option is to sell the business, with the proceeds being divided between the spouses according to the terms of the divorce settlement. The sale may be facilitated either on the open market or through a negotiated private sale. To protect their interests, business owners can take proactive measures before and during marriage. Implementing prenuptial or postnuptial agreements that specifically address business ownership can provide clarity in the event of a divorce. These legal documents can outline how the business will be valued, divided, or managed in the event of marital dissolution. Navigating the complexities of divorce and business ownership requires the expertise of professionals. Engaging attorneys with experience in family law and business matters is important. Additionally, financial experts, such as forensic accountants or business appraisers, can provide valuable insights into the financial aspects of the business and assist in the valuation process. When businesses are an issue in divorce, interest owners should be prepared for an examination of their business and its financial intricacies. By seeking professional guidance, understanding their legal rights and responsibilities, and exploring the available options, business owners can increase the likelihood of reaching a fair and equitable resolution during this challenging time.
January 5, 2024
Immigration Law
Updates to the H-1B Work Visa Petition Process for 2020 Applicants and What Employers Need to Know
Originally posted 2.28.20, no content changes. This blog post may contain information that was accurate at the time of publication but could become outdated over time. We strive to provide relevant and timely content, but circumstances, facts, and data can change. Users are encouraged to verify the current status of any information presented and seek updated guidance where necessary. The process for obtaining H-1B visas, which allow employers to hire foreign nationals to work in the U.S., has undergone significant revisions. These changes impact new hires that have recently graduated from U.S. universities, as well as foreign workers applying to jobs from overseas, or those workers who are already in the U.S. but changing to H-1B visas from another previous visa status. Changes by the U.S. Citizenship and Immigration Services have gone into effect this year, impacting employers who rely on foreign national employees and candidates looking to start work in October 2020. In December 2019 the USCIS announced a successful test run of the new H-1B registration system, which introduced key changes to the filing and lottery process that both employers and workers should be made aware of. The advantage of this system is that the bulk of the petition process takes place after the lottery selection has been made. In the past, fully completed petitions supported by the legally mandated evidence were due even before the lottery took place. Under the present system, employers can participate in the lottery in an abbreviated process and avoid spending time and money on applications that eventually do not get past the lottery stage. The USCIS has introduced a new online-only H-1B Registration tool, which according to an official statement “[streamlines the] processing by reducing paperwork and data exchange.” An initial registration period will run from March 1 through March 20, 2020. The new tool, which was first seen in a nearly-identical preliminary phase during late 2019, requires less information about the sponsored applicant to be provided by employers than in previous years. Employers are no longer required to submit a certified Labor Condition Application or provide information regarding wages and other details of employment during the registration process. To access the Online Registration tool, employers and attorneys sponsoring beneficiaries must create accounts with the USCIS here. Candidates looking to submit H-1B registration require a sponsor or employer to be considered for a work visa. The current quota cap for H-1B visas is 65,000 for regular registrants and 20,000 for registrants with master’s degrees. To obtain a work visa, candidates must first be successful in a lottery via a computer-generated random lottery. Registrants are expected to be made aware of their lottery status by April 1. Unselected registered candidates are placed on a list of reserves. Full details regarding the new registration process are publicly available and can be found in the DHS Federal Register found here. If you have any questions about H-1B Visas or would like further information about this or any other immigration law matter, please contact me.
January 5, 2024
Estates and Trusts
2024 Update – Federal Exemption and Exclusion Amounts
Beginning January 1, 2024, the IRS has increased the federal estate tax exemption to $13.61 million per person and $27.22 million for married couples. This increase also applies to the lifetime gifting exemption and means that individuals can transfer up to $13.61 million tax-free during their lifetime or at death. Married couples can double the exemption amount through portability and gift-splitting. As a result of the increased exemption amount, individuals who have previously used all of their lifetime gifting exemption now have an additional $690,000 that they may use to make gifts in 2024. Additionally, the 2024 annual gift tax exclusion amount has increased from $17,000 to $18,000 per donee in 2024. The increased exclusion also means that a married couple may gift up to $36,000 in gifts to individuals this year. Although the exemption amounts have increased for 2024, it is important to note that the 2017 Tax Cuts and Jobs Act, the federal legislation that increased these estate and gifting exemptions, is set to end on December 31, 2025. Unless Congress acts in the interim, the federal exemption amounts will revert to $5 million per individual (adjusted for inflation) on January 1, 2026. As a result, it is best to consider gifting now while the exemption amounts are higher and perhaps earlier in the year before the 2024 election in the event of further congressional action. An experienced planning attorney can advise you on estate and gift tax avoidance strategies that may be of benefit to you and/or your family.
January 4, 2024
Immigration Law
E-2 Treaty Investor Visa
Originally posted 11.2.20, content updated 1.3.24 An E-2 Treaty Investor visa[1] is a non-immigrant visa that allows foreign nationals of a treaty country to enter the U.S. to work on developing and directing the operations of a business. This visa is for an individual who wishes to invest by starting up or buying a business, small or large, in the U.S. In order to qualify for this visa, applicants must meet a series of requirements[2]. Six Requirements to be Eligible for the E-2 Visa: The applicant must be a citizen of a treaty country. This visa is only available to individuals from the countries that the U.S. has a treaty agreement with. Visit the Department of State[3] website to view the complete list. You must have invested or be in the process of investing funds. There are three requirements for these investment criteria:You must show legitimate possession and control of funds. The funds to be invested must have been obtained lawfully. You must provide evidence on how you acquired the funds, either earned or as a gift. Some examples of evidence include tax returns, bank statements, documents to support the source of money (e.g., proof of sale if you sold property), investment accounts, etc. This may be challenging in some countries that do not have records available. All funds invested are subject to risk and loss. This provides proof that you are irrevocably committed. At-risk money includes credit card, debit, or other loans as long as the debts are not secured by business assets. You must be close to starting the business. Although no work can be done prior to visa approval, the business should be ready. This may include a signed lease, a business bank account, an established website, and purchasing everything needed to start the business. You must be in a position to develop and direct the business. The visa applicant must be the one to direct and run the business. This also means that the applicant must have the appropriate education or experience necessary for the position and business. Your investment must be substantial. The U.S. Citizenship and Immigration Services (USCIS) has not defined what they mean by “substantial,” and there is no set minimum or maximum amount. This depends on several variables, including the total capital of investment in relation to the total amount required to set up the business. Only working capital (not cash sitting idle in a bank account) will be considered by the USCIS as part of an investment. Your investment and business cannot be marginal; meaning, you cannot start a business just for you and your family. There must be a business plan in place to show growth over a 5-year period or that you plan to hire employees. You must intend to return to your home country after the visa expires. To document this, provide a signed affidavit stating such. You do not need to show ties to your home country. Applying for an E-2 Visa in the U.S. (I-129 Change of Status): If you are in the U.S. on another status, you can file a petition with USCIS to change your status to an E-2 Visa. You must file an I-129 form[4], complete the E-2 visa supplement, and provide all documentation required to support your E-2 visa request. If your petition is granted, you will be in E-2 status, which typically lasts two years. To change the status of any dependents that are also in the U.S., you must file an I-539 form[5]. Applying for an E-2 Visa at a Consulate (An E-2 Visa): If you wish to petition for an E-2 visa and are outside of the U.S., you will file an online application DS-160. You will also need to complete a DS-156E supplement. Instructions on how to do so are outlined on the website of the relevant consulate. Documentation to include is typically the same as those you would submit if filing in the U.S. However, you should still check with the consulate to see if other documents are required. Visas are typically granted between 2 and 5 years and allows for you to leave and enter the U.S. for travel. If you have dependents, they will file separate DS-160 applications. Things to consider: If you have been granted a change of status and then leave the U.S., you must reapply for the E-2 visa along will all supporting documentation (as if submitting a new application) at the consulate abroad. If the application is approved, you will receive an E-2 visa and will then be able to leave and reenter the U.S freely. Some consulates are easier than others to get am E-2 visa approval. Some are unwilling to approve an E-2 if the investment is less than $100,000. For others, the threshold is even greater. Common Questions: How long does the visa last? If you received E-2 status through a change of status, it will generally last two years. If processed at the consulate, the visa can last five years. How are family members treated? E-2 derivative visas are available for the spouse and children (under 21) of the E-2 Investor. Children may attend school in the U.S., but unlike the spouse, they are not authorized to work. Spouses are eligible to work by applying for an Employment Authorization Document (EAD). Does an E-2 Visa lead to a green card? An E-2 visa is a non-immigrant visa and will not lead to a green card. However, renewals of the E-2 are allowed indefinitely so long as the business is still in operation. Since the visa is temporary, applying for another green card option while on E-2 status may show immigrant intent. If you are considering this option, please contact our office. Do I need to hire U.S. employees? You do not have to hire employees immediately; however, your 5-year business plan should include information on when you plan to start the hiring process. There is no minimum number of U.S. employees needed. However, if no workers are hired, USCIS may consider that the business is established only to support the E-2 applicant and family and is as such “marginal” and not qualified. Therefore, it is important to at least hire some workers as reasonably necessary for the business to operate. Do I have to invest $1,000,000 and hire 10 employees? No, that requirement is for the EB-5 immigrant (green card) visa. There is no specific amount of investment or number of employees required for the E-2 visa, unlike the EB-5 visa classification.[6] Is there a minimum amount needed for the investment? There is no required amount necessary for the investment. There have been approvals of investments that were as low as $15,000 spent with $35,000 as working capital saved in the bank. Your investment amount depends more on your business; if you are a service business such as a consulting company, then the investment will be lower than a capital-intensive business such as a manufacturing plant. Can I borrow money to start the business? Unlike the EB-5 visa, you can borrow money as long as the business is not overly leveraged. Do you need a business plan to get the E-2 visa? Yes, a 5-year business plan is necessary for your visa petition to be considered. Can a real-estate investment such as purchasing a home qualify for an E-2 visa? No, the investment must be for either starting a new business or purchasing an existing business in order to qualify for the E-2 visa. The business must be active in the U.S. Passive investments such as in real-estate or stock are do not qualify. Not-for-profit organizations are also excluded since it is required that your business make money. How long does the process take to get an E-2 Visa? Since a number of USCIS forms and extensive supporting documents are needed, it can take time to prepare a successful filing. Once the filing has been submitted, the processing time can range from three weeks to three months (or longer). This time depends on where the consulate is that the applicant filed. What kind of business is eligible for an E-2 visa? Any lawful and legitimate business that meets the requirements stated above. This could be anything from a wine distributor, law firm, or coffee shop. Assistance on E-2 Process E-2 visas are complicated and require careful revision of documentation for a successful petition. If you are interested in starting or investing in a business in the U.S., please contact our office to learn more about the E-2 visa and how we can assist you.
January 3, 2024
Business
The Corporate Transparency Act and FinCEN Reporting
As you may already know, the Corporate Transparency Act (“CTA”) goes into effect on January 1, 2024. Under the CTA, many privately held companies will be required to file beneficial ownership information (“BOI”) reports online with the Financial Crimes Enforcement Network of the U.S. Treasury (FinCEN). For more information, see an overview linked below. We will continue to monitor updates to this process in the new year.
December 27, 2023
Estates and Trusts
Wealth with Wisdom: Leaving Educational Legacies in Your Estate Plan
As estate planning attorneys, we guide our clients in distributing their wealth to the next generation efficiently. However, Guy Fieri and Shaquille O’Neal recently made headlines by stating that their children need to earn two degrees to inherit from them. There is a trend articulated in the headlines, namely that tying inheritances to education goals, especially the size of inheritances from celebrities like Shaq, should contribute to the personal and intellectual growth of your children. Conditions requiring certain educational milestones or that an inheritance may only be used toward this goal in order to inherit from a loved one can be a powerful way to leave a lasting impact. The following are a few tips to consider when exploring the idea of leaving assets in your estate plan with educational conditions for your children, emphasizing the importance of combining financial legacy with a commitment to lifelong learning. The Purpose of Leaving Educational Legacies: Empowering Future Generations: When a condition of education is articulated in an estate plan, a message is received. That message, stating that education is a prerequisite to receiving an inheritance, not only encourages your child to pursue additional education but also sends a message that you believe life is more than just financial security, that education is a prerequisite to obtaining that financial security. It is the hope of many of my clients who choose to have educational prerequisites in their estate plan that they not only instill the importance of learning but perhaps demonstrate that education can empower them to also accumulate wealth for future generations. Fostering a Growth Mindset: A requirement that a child meets an educational condition can also encourage a “growth mindset.” Many clients see this condition as a conduit to inspire their children to embrace the challenge of higher learning. So many of our clients who worked hard to accumulate their own wealth have concerns that simply handing over an inheritance will mean that their own child will never face the challenges that the client has faced nor understand the value of “hard work” or the “struggle” to succeed and accumulate wealth. Placing a “two degrees” condition on an inheritance might be a way for your child to not only prove to themselves that they are up to the challenge, but the hope is that further education will also better equip the child to not only manage the inheritance more efficiently but also have a greater appreciation for that inheritance. How to Create Educational Conditions: How the Funds Can be Spent? Your Will or Trust is your “universe,” and therefore, it can define the educational conditions and expenditures as you see fit. For example, an inheritance can be left in trust, and distributions might only be made for tuition and educational expenses related to pursuing a college or an advanced degree. You may even specify what portion of the inheritance can be allocated to cover the costs associated with pursuing a degree and further define those expenses (i.e., books and transportation but not living expenses). The requirements can be even more granular to state that an inheritance can only be used to pay for graduate school in a particular field of study that a parent deems worthwhile. Educational Attainment Milestones: Like Shaq and Guy, many clients determine that their child’s entire inheritance is conditional upon earning a degree. As Shaq said so eloquently, “No cheese without two degrees.” Guy has made public statements following Shaq’s lead. Unless the O’Neal and Fieri children earn two college degrees each, they will not inherit at all from their fathers. Milestones like these are easy to add to an estate plan and are easily enforceable. As already mentioned, the spirit behind the milestones is to foster that growth mindset and empower their family’s future generation to ensure a more educated family tree. The hope is that the more educated the child, the more responsible they will be in managing those assets and preserving the wealth for generations to come. Important Details to Consider: Flexibility: Life is unpredictable, so it’s important that your estate planning documents are drafted in such a way that it is possible to adapt to life’s changing circumstances, particularly for your children. It is essential to design your educational conditions with flexibility to accommodate unforeseen challenges or opportunities for your children. Perhaps this means that you should extend the scope beyond traditional education to include opportunities for professional development, ensuring your children are equipped for success in their chosen fields. What happens if your child, while responsible and hardworking, is not college-bound? Conditions can also be tied to earning a vocational degree or being gainfully employed. Additionally, conditions can be tailored to encourage entrepreneurial ventures to foster their creativity or business acumen. Communication: Communication is key! If you want to empower your children and foster a growth mindset, you need to share this with your children. Therefore, it is so important when these types of estate planning conditions are imposed that they are communicated transparently to your children so that they have the opportunity to meet and exceed the conditions. It would be best to discuss your intentions with your children so they fully understand the conditions, how the funds can and cannot be used, and your rationale for imposing these conditions. Trusteeship. It cannot be understated how important it is to appoint a Trustee who will not only enforce the terms of your educational conditions but also understand and respect them. A trustee will enforce the terms of the conditions to ensure that all of the terms are met by your children. Most importantly, the trustee will be your voice long after you’re gone and can help communicate those educational conditions to your children so that they can successfully manage their inheritance and their future security. In conclusion, leaving assets in your estate plan with educational conditions for your children is a profound way to extend your influence beyond your lifetime. By intertwining financial legacies with a commitment to education, you not only provide for their immediate needs but also empower them with the tools to thrive intellectually and professionally. As you plan for the future, consider the legacy of wisdom and knowledge you can pass on to future generations, leaving a lasting impact on their lives.
December 22, 2023
Family Law
Cohabitation Agreements: Protecting Assets and Income of Unmarried Couples Residing Together in DC
Unmarried couples residing together in the District of Columbia would be wise to execute a cohabitation agreement defining their rights and responsibilities to avoid substantial financial risk. The District of Columbia is one of a small number of jurisdictions in the United States that recognize “common-law marriage.” Contrary to popular belief, there is no minimum amount of time that couples must live together to form a common-law marriage. Instead, a couple forms a common-law marriage in the District of Columbia when there is cohabitation following an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. A common-law marriage can be formed without any marriage ceremony or marriage license. A well-drafted cohabitation agreement signed and notarized by both parties will unequivocally explain that the parties do not intend to form a common-law marriage. The agreement should also clarify that each party will retain their own assets and income and assume responsibility for their own debt if and when the relationship ends. In the absence of a cohabitation agreement, one of the parties to the relationship might file a complaint for divorce in the Superior Court for the District of Columbia, asserting that the parties formed a common-law marriage. If the Court concludes that the parties formed a common-law marriage, the Court can order one party to pay spousal support to the other, depending upon the facts of the case. The Court can also equitably distribute property and debt acquired by the parties from the date of marriage to the date of divorce, except property acquired by gift or inheritance, and order one party to reimburse the other party for attorneys’ fees incurred in the divorce proceeding. Even if the parties never formed a common-law marriage, the party who denies the existence of a common-law marriage will have to engage in lengthy and costly litigation to prove that the parties were never common-law married to avoid having his or her assets and income divided by the Court. The attorneys’ fees involved in defending against a false common-law marriage claim can be substantial. To avoid costly and time-consuming litigation and protect your income and assets, anyone planning to reside with another person in a romantic relationship or already residing with another person in a romantic relationship should promptly seek the assistance of an attorney in preparing a cohabitation agreement.
December 21, 2023
Immigration Law
B-1 Visa for Domestic Workers
The B-1 visa is an ideal solution for personal employees or domestic workers to accompany or join a U.S. citizen employer temporarily in the United States. This visa category caters to a range of domestic roles, including cooks, chauffeurs, valets, footmen, nannies, housemaids, gardeners, and paid companions. Requirements for the B-1 Visa The U.S. citizen employer must either have a permanent home or should be routinely stationed in a foreign country. The U.S. citizen employer is temporarily traveling to the U.S. The employer’s return to the U.S. should not exceed six years. The employer can demonstrate the regular employment of the domestic worker in the same capacity as the intended employment in the U.S. or a minimum 6-month employment relationship prior to the employee’s entry into the U.S. The employee must provide evidence of employment experience as a personal employee or domestic worker (i.e., attested statements from previous employers). A signed and dated employment contract for the intended employment in the U.S. must be provided. Requirements of the Employment Contract The employment contract must be signed and dated. The employee’s daily wage should be the greater of the minimum or prevailing wage under U.S. federal, state, or local law. The employer must provide living quarters and airfare for a round trip to the U.S. to the employee. A certification to affirm that the employee may only be required to stay on the premises after working hours if appropriately compensated. The employee must only be employed by the employer in the U.S. The contract should mirror the standard benefits provided to U.S. domestic workers in a similar area of employment. Application Process The employee should work with an immigration attorney to prepare a detailed B-1 application addressing the employee’s qualifications for B-1 status. Once the application is complete, the employee should schedule a visa appointment at a U.S. Embassy or Consulate abroad to present their B-1 visa application and discuss their qualifications. Once the application is approved, the employee’s passport will be returned with the B-1 visa within 3 to 5 business days. The B-1 visa may be granted for a period ranging from 6 months to 10 years, at the discretion of the interviewing officer. Post-entry in the U.S., the employee must then apply for an Employment Authorization Card (Form I-765, Application for Employment Authorization). This process may take from 3 to 9 months. The Employment Authorization Card will be limited to the expiration of the employee’s I-94 admission period. Work Authorization Once the employee receives the Employment Authorization Card, the employee may apply for a U.S. Social Security number and receive a salary from a U.S. source. Holders of B-1 visas are subject to taxation obligations imposed on U.S. wage earners and may avail of the same protections as U.S. workers. B-1 Employment Status Post Entry in U.S. The initial authorized entry period typically spans from 6 to 12 months. The employee may be eligible for an extension status (Form I-539, Application for Extension of Status) for six months, which may be renewed. It is imperative that the employee keep track of the expiration dates of their visa, I-94 admission period and Employment Authorization Card. Unlawful presence in the U.S. can have serious consequences on their ability to return to the U.S. in the future.
December 20, 2023
Family Law
In Landmark Ruling Pope Francis Approves Priestly Blessings for Same-sex Couples (Under Certain Circumstances)
On December 18, Pope Francis approved a landmark ruling allowing Roman Catholic priests to administer blessings to same-sex couples as long as they are not part of regular Church rituals or liturgies nor given in contexts related to civil unions or weddings. The declaration from the Vatican’s doctrinal office, approved by Pope Francis, said such blessings would not legitimize irregular situations but be a sign that God welcomes all and does not discriminate. Francis’ comments are the first uttered by a pope about such laws. But they are also consistent with his overall approach to LGBTQ people and belief that the Catholic Church should welcome everyone. Earlier this year, in January 2023, Pope Francis criticized laws that criminalized homosexuality as “unjust,” saying “being homosexual isn’t a crime,” and “God loves all his children just as they are” and called on Catholic bishops to welcome LGBTQ people into the Church.1 The formal declaration entitled “Fiducia Supplicans” (“Supplicating Trust”) was subtitled, “On the pastoral meaning of blessings” (“Fiducia Supplicans”), is a resistance to a rigid church, one that excludes people from blessings because they fail doctrinal or moral litmus tests, but also one that turns blessings — including to same-sex couples — into the supports of a new Canon legal structure. The Fiducia Supplicans evolved from a letter Francis sent to two conservative cardinals in October. It reaffirms that marriage is an “exclusive, stable and indissoluble union between a man and a woman, naturally open to conceiving children.” The declaration insists that Mass is not the proper setting for the less formal forms of blessing that could include the blessing of a gay couple, and it repeats that “it is not appropriate for a diocese, a bishops’ conference” or other church structure to issue a formal blessing prayer or ritual for unwed couples. Further, the blessing should not be given “in concurrence” with a civil marriage ceremony to avoid appearing as a sort of church blessing of the union. And it stresses that blessings in question must be non-liturgical in nature, must avoid using set rituals, and avoid the clothing and gestures that are traditional in a wedding. But it says requests for such blessings for same-sex couples should not be denied outright. Priests are to decide on a case-by-case basis and “should not prevent or prohibit the Church’s closeness to people in every situation in which they might seek God’s help through a simple blessing.” “Ultimately, a blessing offers people a means to increase their trust in God,” the document said. “The request for a blessing, thus, expresses and nurtures openness to the transcendence, mercy, and closeness to God in a thousand concrete circumstances of life, which is no small thing in the world in which we live.” Conclusion There has been a small burst of liberal activity in the Catholic Church on several fronts in 2023 from the Vatican’s Office of the Doctrine of the Faith, not just on the LGBTQ issue. On Oct. 31, Francis approved another document, making clear that transgender people can be baptized, serve as godparents, and be witnesses at church weddings, furthering his vision of a more inclusive church. And, for the first time, women and laypeople can vote on specific proposals alongside bishops, a radical change that is evidence of Francis’ belief that the Church is more about its flock than its shepherds. Pope Francis has worked steadily to open the Church to the LGBTQ+ community. For some, his efforts are too much. For others, they are not enough. 1 “Being homosexual isn’t a crime,” Francis said during an exclusive interview on January 24, 2023, with Tuesday with The Associated Press.
December 19, 2023
Estates and Trusts
When to Review your Estate Plan: The 5 Ds
Originally posted 12/17/2020, no content changes. You finally sat down with an estate planning attorney after years of procrastination and created an estate plan that reflects your wishes: can you file it away with the rest of your important documents and never think about it again? Not exactly. As a rule of thumb, you should review your estate plan every three years or when there are significant tax changes at the state or federal level - much like the changes (likely) on the horizon this January. However, if your life has been touched by the 5 D's - Death, Disability, Divorce, Distance, and/or Descendants you should speak with your estate planner right away. Death When a family member or close friend dies, there are a few reasons to trigger a review of your own estate plan. First, the deceased loved one may have left you a significant inheritance that changes the schematic of your own estate plan from a tax perspective. Receiving a large inheritance will necessitate a review of your plan to ensure that you have considered the tax ramifications of the same. Second, the deceased loved one may have been named as a fiduciary in your estate plan. If you named the deceased loved one as your agent under a Power of Attorney, or Health Care Proxy, it is important to review those documents to make sure that you have an alternate agent and if you do not, you should update those documents right away. In your own Will, if the deceased loved one is a beneficiary of your estate, are you satisfied with who will inherit from you instead of the deceased loved one? It is often necessary to revise the plan of distribution considering a loved one's death. Disability Receiving a diagnosis of an illness or life altering condition for you or a loved one can be overwhelming. In addition to grappling with the realities of a diagnosis, it is imperative to review your estate plan from the lens of that disability. For example, if your spouse is diagnosed with a memory impairment condition such as dementia or Parkinson’s Disease, your estate plan should be reviewed by an elder law attorney to make sure that your assets are held in a trust that will allow for Medicaid eligibility in the future to pay for care one day. If a beneficiary in your Will is now disabled and relies on public benefits to pay for his care, you may wish to revise your own Will to direct that your disabled loved one's bequest is left in trust for him, so that his future inheritance will not disqualify him from the benefits upon which he relies for his disability. If you received a diagnosis, you should make sure that those you nominated as your agents under your Power of Attorney and Health Care directives are the people you still entrust with these particularly important and vital roles. Divorce If your marital status changes - a divorce, or a new marriage, your estate plan will certainly change. In the case of a divorce, each of your estate planning documents should be reviewed. If your estate plan was created during your marriage, it is likely that you chose your former spouse to act as your agent under a Power of Attorney and Health Care Proxy and as Executor or Trustee under your Will or Trust. In many states, a divorce will automatically end such an appointment without changing your documents - but not in every state. In addition to reviewing your documents, you should also consider the assets that have beneficiaries to ensure that your former spouse is not named as a beneficiary on your retirement savings plan, life insurance, and other financial accounts. In the case of a new marriage, it is important you have a discussion with your new spouse about your assets entering into the marriage and your wishes as related to the distribution of those assets in the event of your death. In many cases, spouses enter into pre- or post-nuptial agreements to address estate inheritance issues and estate planning documents should reflect those agreements. Distance If you relocate from the state where your estate plan was created, it is important to have your estate planning documents reviewed by an attorney licensed in your new home state. Laws vary greatly from state to state with respect to rules of inheritance, asset protection, and estate taxes. While states do honor other states' documents under the Full Faith and Credit Clause of the US Constitution, each state has its own forms and provisions that may make a revision of your estate plan in the new state more practical and cost-effective in the future. In addition to your own move, if a fiduciary that you have named in your Health Care Proxy or Power of Attorney moves across the country it should be considered whether it is practical for that person, who now lives in a different time-zone, to continue in that role. It becomes even more complicated in the case of a fiduciary moving out of the United States. In New York for example, if you name a person as your executor who resides in a foreign country, it is unlikely the Court will honor your choice and instead appoint someone else as an executor. Descendants It is imperative to create an estate plan when you have children. In 2020, I generally do not have to remind clients that bad things happen. In the unfortunate event that you and your spouse or partner die with minor children, it is imperative that you make an election with respect to your children's care. A Will should provide a guardianship provision for your minor children in the event of your death. Leaving this information out of your Will or relying on a Will that was created before you became a parent could be catastrophic for your minor children. If you are a single parent, the importance of a Will with a guardianship clause is exponential. If you die without a guardianship provision, anyone in your child's life could petition the court for her guardianship. The court will decide guardianship based on your children's "best interests" - which might not match what you would believe to be in your children's best interests. In the case of a grandparent who excitedly amended her Will to include her first grandchild as a beneficiary, it is important that her estate plan is updated for each new grandchild. With all of this in mind, it is important to think of your estate plan as fluid. Whether it is a new presidential administration or one of the 5 D’s, it is so important to stay in touch with your estate planning attorney and review your estate plan to make sure it is reflective of your current life circumstances.
December 18, 2023
Construction
Protecting Contractors’ Rights Filing and Perfecting Mechanic’s Liens in Virginia
In the complex realm of construction and property development, contractors and suppliers often find themselves grappling with payment disputes. A Mechanic’s lien can provide a powerful tool to secure payment for services rendered or materials supplied. This article briefly introduces the procedures to file and perfect a mechanic’s lien under Virginia law.[1] What is a Mechanic’s Lien? A mechanic’s lien is a legal claim against a property that ensures contractors, subcontractors, and suppliers receive payment for their work or materials. In Virginia, this remedy is governed by Virginia Code § 43-3, et seq. Timely Filing is Paramount: Under Virginia law, it is imperative to file the mechanic’s lien within 90 days from the last day of work. § 43-4. Failure to perfect a Mechanic’s lien by that deadline may result in the loss of lien rights. Prepare the Lien Claim: Crafting and perfecting the Mechanic’s lien requires: Identification of the Parties: Clearly state the names and addresses of the property owner, the claimant (contractor or supplier), and the general contractor. Property Description: Provide an accurate description of the property subject to the lien. This should include the legal description and the street address of the property where the contractor or supplier performed work or provided materials. Detailed Statement of the Debt: Clearly outline the services rendered or materials supplied, along with the corresponding costs. Be specific and transparent in detailing the debt owed. Notarization & Copy Mailed to Property Owner: In Virginia, it is essential to notarize the lien and mail a copy of the lien to the property owner’s last known address. Use the following form to identify and state a Mechanic’s lien: Virginia Mechanic’s Lien form. Filing the Mechanic’s Lien: Once the lien claim is prepared, it must be filed and recorded with the Circuit Court in the county or city where the property is located. Along with the claim, a claimant should expect to pay a filing or recording fee to the circuit court clerk’s office. Enforcing a Mechanic’s Lien: If a contractor or supplier still has not received payment despite filing and perfecting a Mechanic’s lien, a claimant may file a lawsuit to enforce the lien. However, a claimant must file an enforcement action s within 6 months of lien’s filing date (or 60 days if the property owner has recorded a notice of completion). Failure to file a lawsuit to enforce the lien within the above time limits could render the lien unenforceable. Conclusion Navigating the intricacies of mechanic’s liens in Virginia demands precision and adherence to statutory timelines. If you or your organization have an outstanding construction-related claim, consulting with a trusted attorney in your area might prove to be the difference between securing payment or not. While outcomes cannot be guaranteed and past performance cannot assure future success, Offit Kurman litigator Anders Sleight | Offit Kurman is available to evaluate your specific situation. [1] These materials have been prepared for informational purposes only and are not legal advice. Reviewing this post or contacting Offit Kurman in response does not create an attorney-client relationship. Case results depend upon a variety of factors unique to each case, including the specific factual and legal circumstances of each case. This post may constitute ADVERTISING MATERIAL.
December 14, 2023
Family Law
It’s Tax Time
Although most folks think that tax time is April 15th or thereabouts, there are a number of things that you should consider doing before the end of the year that may affect your tax obligation for 2023. Certainly, check with your accountant or tax advisor, but generally, the end of December and the beginning of January are prime times to get organized. If you don’t already have a CPA or tax professional, this is a good time to find one and establish a relationship. CPAs often stop taking on new clients after the beginning of the year, and some tax planning in December may be very beneficial. As those forms come in, file them away in a safe place so that you can produce them easily when you begin the process of sharing them with your tax advisor. If you have had big changes in the past year, like a new baby or a second job, you may want to adjust your withholding early in the year. Of course, December is a great time to make donations to charity and maximize your IRA. If you are going to owe taxes when you file your return, you may want to pay as much as possible towards that obligation before the actual filing deadline.
December 13, 2023
Litigation
Possession – Is It Really Nine-Tenths of the Law?
What does the expression “possession is nine-tenths of the law” mean? “Possession is nine-tenths of the law” is simply a recognition of presumed ownership. As highlighted recently in an Alexandria federal case over the rightful heirs to four original Norman Rockwell paintings (see Elam v. Early, Case No. 1:23-cv-229), the common law provides that the one possessing property is presumed to own it. On the flip side, one claiming ownership in property possessed by another has one’s work cut out. Why does the common law presume that one in possession is the rightful owner of something? Why does the common law presume that one in possession is the rightful owner of something? Stated alternatively, “Why do we infer ownership from possession?” Because the alternative is too impractical! Imagine a world in which you had to carry or produce receipts or other proof of ownership for anything and everything you own, everywhere, all the time! Absent such proof, you would instead be presumed a thief subject to arrest. One will note that we have developed certain exceptions to the general rule – vehicle registries and cattle branding come immediately to mind. While not expected to produce a car title if stopped by police, drivers are expected to produce proof of registration in part to evidence that the vehicle they are driving isn’t stolen. Similarly, ranchers have a longstanding tradition of uniquely branding their livestock as a means of readily identifying ownership of the animal. The exceptions are generally accepted as appropriate due to the significant value of the items involved. Similar “branding” exists with other items of significant value to which unique identifiers or serial numbers are inscribed or otherwise affixed. While registries and unique identifiers may prove helpful in establishing ownership, however, it must be noted that they, too, merely provide evidence on which one might rely in proving one’s status as the rightful owner. How does one legally challenge the “possession is nine-tenths of the law” presumption? The ability of one not possessing property to establish proof of ownership renders the original presumption rebuttable. One claiming ownership might claim, for instance, that the possessor stole or, in non-criminal terms, “converted” the property. Alternatively, if one had originally come into possession of property legally but subsequently refused to return it, an aggrieved owner of the property might argue that a breach of bailment had occurred. While proof of theft would serve to rebut ownership, it would not necessarily be conclusive in a particular situation where what is ultimately called for is proof of superior title. One might imagine a situation, for instance, where the true owner is shown to have improperly stolen an item back from the original thief. Proof of superior title would prevail as to ownership even if the owner might remain answerable for any legal consequences of the thievery. Establishing proof of a gift of an item is another foreseeable step in a case in which burdens of proof shift back and forth. As a presumption can be rebutted, so too can additional evidence of many kinds serve to support an ownership claim grounded in possession. The challengers in the Norman Rockwell case failed utterly to produce any evidence of superior title such that the party possessing the paintings need not establish, even in the absence of proof that the paintings had been gifted by the decedent prior to death, anything more than unquestioned possession. Proof of a gift is not always impossible, however. Testimony of anyone aware of the gift is generally relevant and admissible, as would be a reference in a gift card (in the event it still existed) to the gift itself. I am reminded of a case of my own early in my career in which my client, for reasons I no longer recall, actually had a Polaroid picture of herself with a gift cuckoo clock and writing from the decedent on the bottom of the frame referencing how pleased he was to have given it to her. Then again, one of my all-time favorite lawyer movies, Legal Eagles (a 1986 romcom starring Robert Redford, Debra Winger, and Darryl Hannah – check out its IMDB), draws a much closer parallel to the Eastern District’s recent summary disposition of the Norman Rockwells. While I’ had not intended this as a movie review or date night recommendation, I can’t help but encourage my fellow law-minded movie lovers to check out this legal classic in which Redford and Winger struggle with proving their non-possessory client’s (Hannah’s) ownership of a valuable painting which ultimately comes down to establishing the existence of a gift inscription on the back of the painting (the fiery pursuit and result of which I wouldn’t dream of spoiling for you!). [You’re welcome in advance for this “oldie but a goodie,” 2-in-1 romcom – “lawyer movie” recommendation, notwithstanding the purposefully only-a-lawyer-could-love, yawnfest of a description! I’ll look forward to reading your critical movie reviews.] Does “nine-tenths of the law” equate to only a 10% chance of successfully challenging one claiming ownership merely by possession? Possession may be nine-tenths of the law, but legally supporting or refuting ownership on behalf of either the one in possession or in favor of the other one-tenth is when you need 100% confidence in the legal advocate you choose to help make your case. Don’t make the mistake of equating “nine-tenths of the law” with a 90/10 probability outcome regardless of who represents you. Good legal representation can increase your odds of success, and indifference in the selection process can lead to unfavorable results. Don’t leave your outcome to chance. Relevant experience matters.
December 13, 2023
Family Law
Dirty Tricks Employed by Lawyers and Disregarded by Judges
People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide. (Will Rogers) Divorce proceedings can often be emotionally charged and contentious, requiring individuals to seek legal representation to navigate through the complexities of the process. While most divorce lawyers uphold the highest standards of professionalism and ethics, there are, unfortunately, a few who resort to unscrupulous tactics to gain an advantage for their clients. This article aims to shed light on some commonly known trickery employed in divorce cases, i.e., bad behavior a litigant can expect to see coming from the other side, and with which they will need to cope, inasmuch as judges rarely punish any of this behavior. In other words, as one climbs onto the divorce carousel, make sure to fasten the belt around your waist because it is going to be a bumpy ride [1]. Concealing Assets One of the most prevalent unethical practices involves lawyers helping their clients hide or undervalue assets during the discovery portion of the case, which will ultimately lead directly into the property division segment of the case. This may include transferring assets to third parties, creating fake debts, or underreporting income. Typically, this will involve a lawyer’s failure to produce the financial documents sought by the other side in full or in part. Such actions hinder a fair distribution of marital property and can have severe consequences for the other party involved. Stirring Up Conflict Some lawyers intentionally fuel animosity between divorcing spouses instead of promoting amicable resolutions. By exacerbating conflicts or encouraging their clients to adopt hostile approaches, these lawyers create a more challenging environment for negotiation, causing emotional distress and escalating legal costs. Misrepresentation and False Accusations In pursuit of securing advantageous outcomes, some lawyers resort to presenting false information or distorting facts about the opposing party. This may involve fabricating evidence, making baseless accusations of wrongdoing, or tarnishing the reputation of the other spouse. Such behavior not only undermines the integrity of the legal process but also damages the overall trust between parties. Exploiting Power Imbalances Lawyers are expected to function as advocates for their clients, but when they exploit power imbalances between divorcing spouses, it can lead to unfair negotiations. Manipulating vulnerable clients or bullying the opposing party can distort the outcome and perpetuate injustices within the divorce process. Unnecessary Delays and Legal Maneuvering Some attorneys deliberately prolong divorce proceedings through excessive paperwork, unnecessary motions, or aggressive litigation strategies. This tactic aims to exhaust the opposing party’s financial resources and stamina, forcing them into a disadvantageous settlement or conceding to unfavorable terms out of desperation. Some refer to this as adopting a “scorched earth” policy, i.e., victory or supremacy at all costs [2]. Conclusion While the majority of divorce lawyers adhere to ethical standards, it is crucial to acknowledge the existence of unethical practices that can harm both parties involved in a divorce case. Recognizing these “dirty tricks” allows individuals to be vigilant and seek legal representation from reputable attorneys who prioritize fairness, transparency, and ethical conduct throughout the divorce process. [1] Paraphrase from “All About Eve” (1950). [2] https://www.merriam-webster.com/dictionary/scorched-earth
December 12, 2023
Family Law
Imputation of Income: Rebalancing the Support Scales
Money is like love; it kills slowly and painfully the one who withholds it, and enlivens the other who turns it on his fellow man. (Kahlil Gibran) When one or both spouses in a divorce fail to properly account for their income and expenses or pursue unemployment or underemployment in an attempt to inflate or deflate their or the other’s support obligations, the concept of imputed income can serve to be a great equalizer, rebalancing the marital financial scales. Imputed income can have significant financial consequences for both parties involved. The party against whom imputation is sought may be required to pay higher child support or spousal maintenance, while the party seeking imputation may potentially receive increased financial support. Through the imputation of income, courts can ensure that the proper amount of support is awarded, even in instances where the financial disclosure provided is deemed unreliable or suspect. Imputed income refers to the potential income that a court assigns to a party in a divorce case, even if they are not currently earning that amount or are unemployed. In New York, imputed income can have significant implications for determining child support and spousal maintenance. Under New York law, imputed income is based on a number of factors, including a party’s health, age, and the availability of job opportunities. The Court will strive to be fair and equitable in its determination, taking into account the individual circumstances of each case. This means that the Court will consider such as the party’s education, job experience, skills, and prevailing wage levels in their field when determining an appropriate income to impute. The goal is to ensure that individuals do not intentionally reduce their income to avoid their financial obligations in a divorce. It is important to note that imputed income is not automatic and must be proven by the party seeking it. The Court will carefully consider the evidence presented, including testimony from expert witnesses, to determine whether imputation is appropriate in each case. Examples Of Situations Where Imputed Income May Be Applied Where there is voluntary unemployment or underemployment: If one party voluntarily quits their job or takes a lower-paying job without a valid reason, the court may impute income based on their previous earnings or their earning capacity. When education or training opportunities are rejected: If one party refuses education or training opportunities that could improve their earning potential, the Court may impute income based on what they could have earned with that additional education or training. Where there is an intentional reduction of income: If one party intentionally reduces their income by working fewer hours, taking a lower-paying job, or refusing promotions, the Court may impute income based on their previous earning levels or what they could earn with reasonable effort. When there is unreported or hidden income: If one party attempts to hide or underreport their income to avoid financial obligations, the Court may impute income based on evidence of their true earning capacity. Where questionable Financial Records are produced. If a spouse’s financial records lack credibility or are incomplete. When a party or the parties are living above one’s/their means. If expenses exceed presented income. Where there is a reliance on the generosity of strangers. If a spouse receives gifts from or has ordinary expenses paid by third parties or When there are complicated business structures present. If a spouse appears to have used their business(es) to disguise income. Real-Life Examples Where Income Was Imputed to a Party K. v. K.: The expenses listed on each party’s Statement of Net Worth ($96,624 annually for the wife and $102,636 annually for the husband) far exceeded their respective earnings, and there was no indication that their expenses were not timely being paid. Indeed, both parties acknowledged receiving substantial financial support from their family members. Thus, the Court concluded that that the parties’ financial resources were greater than their self-reported incomes. H. v. B.: $45,000 of income was imputed to the husband based on a brokerage agreement he signed identifying his income as $50,000 per year, documentation showing he held an ownership interest in a trucking business, and the testimony of his ex-wife who worked in the trucking business and had personal knowledge of the company’s payroll. N. v. K.: $46,609 of income was imputed to the husband “based upon his prior income, his training, his choice to pursue only part-time employment, and his current living arrangement, in which he did not pay rent.” S. v. S.: Income of $78,000 per year was imputed to the wife based on evidence at trial that showed she could earn that sum due to her degree and her nurse practitioner license, which was further supported by facts adduced at trial and expert testimony. DV. v. D.: $100,000 of income was imputed to the husband where the expenses he listed in his Statement of Net Worth far exceeded his income as reported on his tax returns, and he lived 3 in a two-bedroom apartment in a luxury apartment building. In addition, after his job for 12 years at a “major bank” was eliminated, he did not demonstrate that he “diligently sought new employment commensurate with his qualifications and experience.” G. v. G.: $151,000 of income was imputed to a wife based on rental income she received from separate property investments and her access to over $500,000 in trust assets that were her separate property. Conclusion In conclusion, imputed income in New York divorce cases is a legal concept that aims to ensure fairness and prevent individuals from intentionally reducing their income to avoid financial obligations. It is important to consult with a qualified family law attorney who can provide personalized advice based on your individual circumstances if you have questions or concerns about imputed income in your divorce case.
December 7, 2023
Family Law
How to Divide Time with Children Over the Holidays Recap
The holiday season is a time of tremendous joy, but it can also be a time of tremendous stress—especially for divorced parents who share custody of their children. Between splitting time, coordinating gifts, arranging travel, and communicating with relatives, you may face numerous demands that necessitate collaboration with your ex-spouse. This is particularly difficult for parents who have irreconcilable differences. Fortunately, your attorney can help. Over on his blog, our AAML colleague Michael A. Robbins offers five simple tips for parents looking for ways to divide time with their children over the holidays. Whatever you decide to do, he writes, make sure to use this time to plan ahead: “One way to create more stress and potential disagreements is to wait until the last minute to determine how time with children will be divided between you and your ex. When you wait until the last minute to make plans, each parent may have made the mistake of assuming that they would have the child, resulting in a conflict. This can also be confusing to a child, who may then feel as though they have to choose which parent to spend the time with.” You can read the full article here. Mr. Robbins’ guidance is helpful, but it only touches on the surface of a complex issue for children and parents. Your legal advisor can help you develop a comprehensive, sustainable custody arrangement for the holidays—and beyond. Get in touch with us today to start planning now.
December 6, 2023
Estates and Trusts
Caught Between Generations: A Roadmap for the Challenges and Strategies of the Sandwich Generation
In the ever-changing landscape of family dynamics and related demographics, a term has emerged in the last few years to describe a group of people who find themselves literally squeezed between the demands of caring for and planning for aging parents and supporting their own children: “The Sandwich Generation.” Personally, finding myself in this unique group, alongside many of my friends, we face numerous challenges and responsibilities, requiring us to balance our caregiving roles for our aging parents and our children while maintaining our own well-being. In this article, we will delve into what the Sandwich Generation entails and offer insight into strategies for effectively managing these often-overwhelming responsibilities that characterize this unique phase of life. What is the Sandwich Generation?: The term “Sandwich Generation” refers to individuals who find themselves entwined in the middle of a generational “sandwich,” positioned between aging parents on one side and dependent (or semi-independent adult) children on the other. Those of us in the sandwich are literally stuck in between, managing both sides. Typically, the individuals who make up the Sandwich Generation are in their 40s to 60s, grappling with the dual responsibility of managing both ends of the generational spectrum. Still, with expanded life expectancy, varied family make-ups, and childbearing years stretching into the 5th decade, age alone does not define membership. The crux of what characterizes the Sandwich Generation is the simultaneous responsibility of providing care and support to both older and younger family members. Challenges The Sandwich Generation Faces: Financial: Navigating the dual responsibilities of supporting both aging parents and children can impose a significant financial burden. From medical expenses and long-term care costs for aging parents to education and upbringing expenses for children, the financial strain can be overwhelming. The strain is exacerbated by the fact that many aging parents do not have the resources or the aforethought to plan for the cost of care properly. Consequently, the onus falls to their adult children, the Sandwich Generation, to solve via their own financial means or provide the required care for their aging parents personally. Time: Members of the Sandwich Generation often find themselves juggling multiple roles and responsibilities. The delicate balance between the demands of caregiving, coupled with professional commitments and personal obligations, can lead to an intense time crunch, resulting in stress and guaranteed burnout. There are simply not enough hours in the day to help everyone in the way they need help. Emotional: Navigating the simultaneous care of aging parents and raising children can be emotionally taxing. Witnessing the decline of one’s parents while safeguarding the well-being of one’s children can lead to a cascade of feelings, including guilt, anxiety, depression, and emotional exhaustion. Throw in the addition of complicated relationships with those aging parents and siblings who have differing opinions on how one’s aging parents should be cared for, and it can be a recipe for emotional disaster. Lack of Support: Individuals grappling with Sandwich Generation challenges often experience a lack of support and resources tailored to their unique circumstances. Family members do not always live geographically near others, which can lead to feelings of resentment for those who can’t be there physically to offer support. Even worse is when family members are within close geographical proximity and still do not offer support, burdening one family member with the overwhelming responsibility of “doing it all.” Strategies for the Sandwich Generation: Foster Open Communication: Talk about it! It is crucial that you foster open and honest communication with your family members. Discuss your caregiving responsibilities and the areas where you need assistance with your spouse or partner, your children, and your parents. Ensuring everyone is aware of the challenges you face in providing care can help set realistic expectations and build a support network within your family. Seek External Support: The time to reach out for help is now! Whether the support is found in your community resources, support groups, or organizations that cater to the needs of the Sandwich Generation, external support is vital. It might be helpful to keep in mind that the community and support groups are free. Connecting with others facing similar challenges in the Sandwich Generation can provide insight, solutions, advice, practical assistance, exchange of information, or just an old-fashioned vent session. Prioritize Self-Care: We all know the anecdote that plane passengers hear at the start of every flight: put on your own oxygen mask first, and only then can you help others. This old adage is something easier said than done. The bottom line is that caring for others begins with caring for yourself. As a member of the Sandwich Generation, make it a priority to engage in self-care activities such as exercise, pursuing your favorite hobbies, and even practicing relaxation techniques. Maintaining your physical and mental well-being is essential to effectively providing care to those around you. Remember, you cannot effectively care for others if you are running on empty. Holistic Financial and Elder Care Planning: Work with a financial advisor, an elder law attorney, and a geriatric care manager to develop a comprehensive plan that considers the financial, legal, and emotional needs of both your parents and children. Explore potential benefits, government programs, legal documents, and long-term care options to alleviate the financial and legal strain. The time to plan is now. Delegation is Key: You simply cannot do it all. Do your best to identify tasks that can be delegated or shared among family members, friends, or hired professionals like those mentioned in number 4 above. You can even involve your children in age-appropriate caregiving responsibilities to assist their grandparents or take away some of your burdens so that your attention can turn to your aging parents. Do not hesitate to seek assistance from your siblings or other relatives to distribute the workload more evenly. Embracing delegation is crucial for maintaining balance and effectiveness in your caregiving role. Embrace the Power of Technology: Utilize technology to streamline caregiving tasks. Explore online scheduling tools, medication reminders, and telehealth services. Embracing technology can help save time, reduce stress, and improve efficiency in managing both your aging parents’ and your child’s care. Leverage technology to empower those far-away family members to contribute to caregiving by paying bills remotely, scheduling doctor appointments, or even ordering groceries online. Embracing technology ensures a more streamlined and collaborative approach to managing the care of both your aging parents and your children. For those of us who know, being a member of the Sandwich Generation can present numerous challenges. Still, navigating these responsibilities successfully with the right strategies and support is possible. The key is finding a balance between caregiving roles and your own well-being. While the role remains challenging, no matter how many solutions are identified, it is possible to thrive while supporting both the older and younger generations in your family. Click here to listen to my podcast, The Sandwich Generation Survival Guide.
December 5, 2023
Estates and Trusts
23 and Me (and who?) and your Estate Plan
Originally posted on 12/10/2022, content updated on 11/27/2023 With the holidays just around the corner, the advertisements for the home DNA test kits are everywhere: For only $99, give the gift of your family tree! In fact, a local restaurateur told me recently that one night he had two separate tables of families “meeting” both for the first time, after receiving their DNA results from one of these kits. Suffice it to say, the direct-to-consumer DNA test kits are adding an element of surprise to many family gatherings. Finding out about a long-lost half-sibling can be great news (or startling news,) but it can also throw an estate plan into chaos. In New York, as in many jurisdictions, estate planning attorneys like myself draft estate planning documents such as Wills and Trusts with language referring to one’s “issue”. In the legal world, a person’s issue is defined as children, grandchildren, and their lineal descendants – in short, the genetic line. Using a term like “issue” is common in estate planning documents so that a person’s lineal heirs are covered in one’s estate plan, even in the event of an untimely death of a younger-generation family member. For example, I might draft a Will that states: “I leave my entire estate to my surviving issue” – which in laymen’s terms means: I leave everything to my children and lineal descendants. Now, suppose your father, who was married to your mother for his adult life, fathered a child unbeknownst to him with someone other than your mother. You are contacted by this child via one of these genetic testing sites and told that you have been identified as their sibling through your father’s bloodline. In the meantime, your father dies with a Will that leaves his estate to his “issue”. Does this newly discovered sibling factor into your father’s estate plan? You bet he might. The path to prove heirship to a decedent in New York is often complicated and rarely direct. If Dad knew about the child and openly acknowledged his relationship, then it would be much easier. In these cases, the New York Courts have accepted an “openly acknowledged” child outside of a marriage as an heir, even without genetic testing. In the example of an “unknown” heir or a child that was never acknowledged, the court most often requires DNA testing to prove heirship, along with other evidence to prove the relationship. So far in New York, the courts have not accepted a self-administered DNA test as independently sufficient to prove heirship. Further DNA testing is required by an approved DNA testing lab to meet the New York standard. However, what is important to note is that an unknown heir obtaining information from a DNA home test kit, might be enough to convince a court to take a harder look at who are the children of the decedent. Preliminarily the results from a home DNA test kit could provide that child enough standing to halt any distribution of the estate until the matter can be further investigated and the child is provided an opportunity to prove his relation. As sophisticated science becomes more available to the general public, the law will inevitably change to accommodate the accessibility of this information, particularly as it relates to estate planning. So, if you find a DNA testing kit under the tree this year resulting in a surprise branch of your family tree, it might be important for you to meet with an estate planning attorney.
November 27, 2023
Immigration Law
Securing the O-1 Visa: A Recipe for Unlocking the Culinary Dream
The O-1B visa is a golden ticket for foreign culinary professionals to bring their culinary skills to the US. The O-1B visa, which is for artists of extraordinary ability, also extends to skilled chefs and bakers. Yes, if you are a culinary professional exploring visa options for the US, the O-1B visa option might be the perfect recipe for you. Essential Ingredients Willing U.S. Petitioner A U.S. petitioner ready to sponsor and hire the culinary professional. Skilled Culinary Professional A highly skilled culinary professional who is “extraordinary” and has significant experience. The professional should be able to provide evidence of at least three out of six of the evidentiary criteria for the O-1B visa. Requisite Forms Gather necessary forms, including the G-28, I-129 with the O Supplement, to be filed with the U.S. Citizenship & Immigration Services (USCIS). Support Letter A letter from the U.S. petitioner in support of the culinary professional. Consultation Letter A consultation letter from the American Culinary Federation (ACF), even if the culinary professional is not a union member. Steps Consult with an Immigration Attorney for identification of the best options and guidance on navigating the process for both the US petitioner and the culinary professional. Collect the Evidence, including reference letters, industry awards, press coverage etc. The evidence should meet three out of six of the required evidentiary criteria that immigration looks for in an O-1B petition. Prepare Requisite Forms and Documents, including the support letter from the US petitioner in favor of the culinary professional and all the necessary government-issued forms. It is suggested to obtain the help of an immigration attorney to ensure proper filing of the O-1B petition. Obtain a Consultation Letter from the ACF highlighting the culinary achievements of the foreign professional and reasons why the professional’s skills are ideal for the position. To process the consultation letter, the ACF requires a copy of the O-1 petition of the foreign national accompanied by the requisite fee. File with USCIS once the O-1B petition is complete, including all the above-mentioned forms and documents. The immigration office will then process the petition and evidence to determine the culinary professional’s “extraordinary status.” If the office decides in favor of the culinary professional, it will issue an I-797 Approval Notice. If not, the office may either deny the petition or request additional evidence. Obtain Visa Stamp from the US Embassy/Consulate Abroad (excluding Canadians) after the I-797 Approval Notice has been issued. Please note that the visa stamp is necessary as the I-797 Approval Notice itself is not a visa. Arrive in the US and start cooking masterpieces with the US petitioner. *Please note that this is not an exhaustive list of requirements. Please consult an immigration attorney for a comprehensive list of requirements and processes.
November 27, 2023
Real Estate
When's A Property Settlement Agreement Not A Property Settlement Agreement? (Part Two)
Originally posted on 01/16/20, content updated on 11/23/23 In this second of a multi-part series (read part one here), I consider a second alternative “use” for a marital property settlement agreement, or PSA. With the help of Shakespeare’s Romeo and Juliet, I’ve previously noted that a document need not necessarily be defined solely by its name, and particularly, that a PSA can legally serve as more than merely an agreement settling property rights between spouses contemplating divorce. For instance, in my prior example, a legally enforceable PSA moonlit as a real property deed in the right circumstances. Like a multi-faceted Swiss Army Knife, that same PSA might also serve you further as a written “assignment” if and when no separate, stand-alone, self-titled “assignment” document exists. At least that’s among the possible outcomes I am currently seeking to convince the Virginia Supreme Court to adopt in Wood v. Martin, Record No. 190738! As with deeds in my prior example discussed in Part One, assignments need not be self-contained in a document so titled. Legally speaking, an “assignment” of a right or interest in property is an act by which one person transfers to another, or causes to vest in that other, all of the right or interest the person has in particular property. For instance, assuming no express contractual limitations on my doing so, I might assign an unencumbered interest I have as a tenant in an apartment lease to a new tenant (as opposed to a “sublease” arrangement where I maintain my original relationship and rights with the landlord). “Signing over” a check is another example of a simple assignment which occurs when the payee on the check (i.e. the one to whom the check is to be paid) transfers to an assignee by signing the back of the check as “payable to [assignee’s name]” the right to cash the check and to receive the full face value. In Virginia, any order, writing, or act “appropriating” a fund, amounts to an enforceable assignment of the fund, so long as it appears that the one transferring an interest intended to do so, and the one to whom the interest was being transferred understood as much and accepted it. Certain insurance-related, protectionist statutory provisions serve to prevent creditors from reaching the proceeds of a debtor’s life insurance policy, but certain categories of “creditors” of the insured debtor, including those with a written assignment of the policy proceeds, are expressly excluded from this limitation. So what befalls an ex-spouse anticipating proceeds of a life insurance policy when their former spouse dies without having honored the obligations of the couple’s PSA? Is such an individual protected by the court’s decree and the court-ordered relief to which they’d bargained? Or is the ex-spouse reduced to a mere “creditor” forced to line up with everyone else for a share of whatever else the deceased may have left behind? If a consensually court-ordered PSA serves to transfer from one spouse to another the former’s interest in life insurance policy proceeds (including the legal right to designate the beneficiary of same) and incorporates the latter’s acceptance of the transfer, nothing more is required to effect a written assignment under such circumstances. Having been granted such a right in the policy proceeds, the surviving ex-spouse, as assignee of the proceeds, is the rightful owner thereof, and not merely a “creditor” to whom the general exemption statute (Va. Code § 38.2-3122) applies (see Faulknier v. Shafer,264 Va. 210, 216 n.6 (2002), reserving on this issue). As such, both the potential statutory bar to recovery for divorcees as “creditors” of their ex-spouses and a possible malpractice trap for unwitting divorce lawyers are thereby mooted — at least insofar as proper notice of the assignment is provided to the insurer before another creditor perfects a priority claim to the proceeds and/or the insurer, without notice of the PSA assignment, pays out the proceeds to a differently named beneficiary. Much like a delivered but unrecorded real property deed, a PSA assignment is not invalidated or rendered unenforceable merely because the insurance provider wasn’t timely provided a copy, or because the provider’s assignment form wasn’t used. Again, like a deed, there are no “magic words” or specific forms required to create an assignment, and the document creating and embodying an assignment need not be called such. So when is a property settlement agreement not a property settlement agreement? When it’s a legally enforceable written assignment, of course. [Practitioner’s Note: One shouldn’t underestimate the potential significance of the insurer’s notice requirement(s)! Failing to meet the insurance provider’s notice requirements or other procedures for perfecting an assignment might, in limited circumstances, force a PSA doubling as an assignment to cede priority on equitable grounds to other would-be claims to the policy proceeds. For instance, while an unnoticed PSA assignee’s assignment remains no less valid and enforceable, the holder of such an assignment must anticipate taking an equitable back seat to either or both one who subsequently lends against the value of the assigned policy proceeds without knowledge or notice of the PSA obligation and/or another (subsequent spouse, perhaps?) who similarly bargained something of value in exchange for being named beneficiary of the proceeds and, unlike the unnoticed PSA assignee, timely took the necessary steps with the insurer to perfect their bargained-for interest.]
November 23, 2023
Real Estate
When's A Property Settlement Agreement Not A Property Settlement Agreement? (Part One)
Originally posted on 11/20/19, content updated on 11/20/23 In this first of a multi-part series, (read part two here) I address some of the multiple potential “uses” to which one can put a property settlement agreement, or PSA, to use when other options aren’t available. “How’s that?” you ask. For starters, to constitute a deed in Virginia at least, one thing not required of a document is that it be titled “deed” to be a deed. To be a valid Virginia deed, a document – regardless of its title — must reflect a “present intent to transfer” to an identifiable recipient and actually be signed by one transferring an interest insufficiently identified the real property. In the course of assisting a judgment-creditor client pursue a multi-million dollar, post-judgment collection, we sought to reach some real property of a debtor in partial satisfaction of the judgment amount. The crafty debtor had successfully avoided finalizing his divorce from his estranged wife such that, according to the land records at least, the couple’s real property appeared to remain subject to “tenancy by the entirety” (TBE) protection from creditor claims. However, a little third-party discovery from the debtor’s estranged spouse confirmed that she claimed no interest in the property pursuant to a legally enforceable PSA entered into by the estranged spouses (despite not having finalized their divorce). The PSA terms included an expression of her present intent to transfer to the debtor-spouse all of her interest in the couple’s real property, which was sufficiently identified for Virginia deed purposes. Our adversary sought pre-trial dismissal arguing (among other things) that a PSA could not be a deed and that even if one could, this PSA wasn’t one because it lacked any “present intention to transfer” language. Accepting the premise that the PSA itself could legally be a deed, the Circuit Court refused to dismiss the case, and instead, afforded the judgment-creditor the right to have a jury decide whether the PSA sufficiently expressed the non-debtor spouse’s “present intent to transfer” the real property. Voila! When is a property settlement agreement not a property settlement agreement? When it’s a deed! In my example, a little creative lawyering (and a receptive, open-minded judge!) afforded the judgment-creditor client newfound negotiating leverage from a seemingly unassailable TBE property interest of a “married” judgment-debtor. At least on that occasion, called upon to serve the judgment-creditor’s need as “deed,” the estranged couple’s PSA unwittingly “doffed” its name, yet smelled every bit as sweet, indeed! (See what I deed there?)
November 20, 2023
Intellectual Property
Are You Properly Licensed to Sing “Happy Birthday”?
Originally posted on 02/20/20, content updated on 11/17/23 It can’t possibly be illegal to sing “Happy Birthday”… can it? We sing “Happy Birthday” about as often as we mow the lawn, fill up the car with gas, or go to the grocery store. Until recently, however, we may have been doing so illegally, depending on the circumstances. It’s easy to forget (if one ever was even aware in the first place!) that someone first wrote a tune and that intellectual property rights might extend to something as basic as “Happy Birthday.” Particularly egregious violations of such IP rights [note tongue firmly in cheek!] might include summer campfire renditions, or worse, heaven forbid (!), posting a YouTube video in blatant disregard for such legally protected rights. Fear not! (well, fearless, at least…) As a result of a major lawsuit involving the copyright’s claimed owner at the time, Warner/Chappell Music, the Happy Birthday tune, written in 1893 by Patty Smith Hill and her sister Mildred J. Hill (originally titled “Good Morning to All”) is now in the “public domain.” Additionally, after the American Society of Composers, Authors and Publishers (ASCAP) threatened years ago to sue the Girl Scouts, among others, the American Camp Association (ACA) and ASCAP reached an understanding costing the ACA thousands of dollars a year to assure legal campfire singing of copyrighted music – the ACA licenses all of ASCAP’s licensed music for all ACA-accredited camps! [Legal disclaimer: Posting a video of your little campfire girl performing even an ACA/ASCAP-licensed tune requires its own special license (available through ASCAP’s Internet Licensing Dept – for a small fee, naturally!). Also, stage production music is licensed by MTI, an entirely separate entity (with no blanket camp licensing deal in place!).]
November 17, 2023
Estates and Trusts
Holiday Harmony (or Hubbub): Disinheriting with Finesse
Whether it is the result of a discussion about politics, a few too many after-dinner drinks, or a shift in a family relationship, after every major holiday, calls from clients increase requesting a change in their estate plan. Regardless if you wish to reconsider who shall serve as guardian for your minor children in the event of your death or to disinherit a family member, things change. The good news is that an estate plan is fluid, and if drafted properly, removing someone from your estate plan is not as complicated as one might assume. Where to start? First things first, you should not make this change to your Last Will and Testament on your own. In New York, defacing a Last Will and Testament, writing notes in the margin, or crossing out someone’s name is generally insufficient to change a Will. In the worst-case scenario, markings on a Will, or defacing it, could even revoke the entire Last Will and Testament, not just the portion you wish to change. Can you make a change? In a word, yes. Wills are revocable and amendable at any time before you die, as long as you have the requisite mental capacity to make this change. In fact, a Will is not an enforceable legal document until your death. And generally speaking, you can leave your assets to anyone you choose, whether they are related or not. Likewise, aside from certain protections for your spouse, you can disinherit almost any family member from your Will. In fact, other than the State of Louisiana, no state even requires that you leave assets to your adult children (minor children are entitled to support from your estate). The protections in place that will not allow you to disinherit your spouse entirely due to public policy reasons will be addressed in a future article. Similarly, with a change to a named guardian for your minor children, you may remove the named guardian from your Will at any time and replace them with someone you believe is more suited for the job. For single parents, it is important to note that naming someone other than the child’s surviving parent as guardian of the minor child is generally insufficient unless there are extenuating circumstances that would render the surviving parent an inappropriate guardian for your minor child. Why make a change? The most obvious reason people make changes to the beneficiaries of their Will is due to family conflict or estrangement. However, there are many other reasons that one may wish to consider making a change. It may be that your beneficiary was recently diagnosed with an illness and, due to that illness, may need to apply for means-tested government benefits. If that is the case, assets that you may leave to that person may be attached by his creditors, like Medicaid, or worse, the inheritance could disqualify him from a much-needed public benefit. One of your beneficiaries, who may have had a greater financial need when you created your Will, may no longer be in a dire financial situation and simply may not need the financial support. Alternatively, one of your beneficiaries may have shown themselves to be financially irresponsible with her own assets, and you may wish to reconsider leaving funds to someone who does not have the ability to properly manage those assets or set up a trust instead to direct how those funds can be used. Suppose one of your beneficiaries is going through a protracted divorce proceeding or is in a marriage that is likely to dissolve. In that case, you may want to reconsider leaving assets directly to that loved one, as the inheritance could end up with your beneficiary’s former spouse. In the case of making a change to your minor child’s guardian, there are all sorts of reasons to replace a guardian. The named guardian may not be as connected to your family or your child as she once was when the Will was first established. Perhaps the named guardian does not live geographically close to your family any longer, and you wish to consider a more local choice for your child to remain in the event of your death. Similarly, if the guardians you chose were married at the time you signed your Will but are married no longer or have had a significant change to their own lifestyle, they may not be the right choice as guardians of your minor children now. There may be a change in the guardian’s religious or political beliefs that are now quite different from your own and could influence how you would otherwise wish your children to be raised. Regardless of the reason for the change of heart, it is important that a change in guardianship be articulated in a properly executed Will; otherwise, such an appointment could be unenforceable, and a court would determine the best guardian for your child. How to make the change? It is important for you to contact an estate planning lawyer to make the above changes to ensure that they are effective. In addition, when making a change that could alter your entire estate plan, it is important that you communicate to the attorney drafting the change your reasons why the change is being made. In the event that one of the disinherited beneficiaries challenges your Will upon your death, the more information the lawyer has to support this change, the less likely a challenge by a disgruntled beneficiary would be successful in his challenge. For practical purposes, it is best practice to mention the related beneficiary who would otherwise inherit specifically in your Will. For example, when disinheriting an adult child or sibling, it is recommended that you include their name and state that “for reasons known to them” or “not for lack of love and affection,” they are not a beneficiary of the Will. This mention does two things. First, if the disinheritance is not for conflict or any other reason, it is a kind gesture to say so to ensure there are no misunderstandings about why you chose to disinherit them. The second reason why a mention of this person is important is so that the disinherited beneficiary cannot make a case to challenge the Will by saying there was a drafting error or they were unintentionally omitted. By the same token, if a person would not be otherwise entitled to inherit from you, in the example of a more distant family member, an in-law, or a friend, there is no reason to mention that they have been excluded from your Will. In conclusion. If your Thanksgiving holiday was full of more conflict than stuffing, contact our office, and we can provide you with the proper guidance to make a change. Similarly, if you are concerned that your current Will that already disinherits a family member could be challenged by him, you may wish to consider a trust that is harder for a disinherited family member to challenge. Either way, your estate plan is your own, and you have a right to ensure that those who inherit from you and those who serve as guardians for your minor children are the individuals that you choose.
November 17, 2023
Bankruptcy
The “Omnibus Order” - “Mutually Beneficial ‘Kitchen-sinking’” | Part Two
Originally posted on 05/06/20, content updated on 11/16/23. Read Part One here » If I’ve learned anything over my many years of legal practice, it’s not to under-estimate how much can be achieved in a single Final Order. Having had my eyes opened to the “mutually beneficial kitchen-sinking” concept, I have taken the challenge personally to test the limits of this time-saving, client-cost-saving practice. For instance, in conjunction with a negotiated global settlement on behalf of a multi-million dollar judgment-creditor involving third-party rights in real property in which the judgment-debtor held an interest (and a host of other pending and potential forthcoming creditor’s rights enforcement proceedings), counsel and unrepresented parties managed in a single order to take a pending Circuit Court case from and through a threshold pre-trial stage of amending the Complaint to allow and add an arguably necessary party (and resolving service issues consequent thereto) all the way to a final order of dismissal. With the cooperation of all but the judgment-debtor, counsel for all parties were able to consolidate into a single comprehensive order presented at a short and simple Motions Day docket presentation for the Court, a multi-party settlement of a pending post-judgment creditor’s rights complaint to sell the judgment-debtor’s real property asset. In the omnibus consent order, agreed to and jointly presented by all but the judgment-debtor, the parties managed to cobble together in a manner ultimately found acceptable to the Court, all of the following: (i) allowing intervention and adding parties; (ii) defaulting the judgment-debtor; (iii) amending claims; (iv) accepting/waiving formal service; (v) stipulating to facts; (vi) stipulating to legal and factual findings and conclusions of law (and doing so in the alternative); (vii) making asset value determinations; (viii) allowing and deeming a private sale had and held with credits/setoffs determined and applied (and done in a manner so as to moot the need for otherwise required proceedings); (ix) entering judgment; and (x) awarding fee simple title transferred to the judgment-creditor. There was no need for a sale, public or private; no commissioners needed to be appointed; no valuation hearings needed to be held. In this manner, the time and expense of proceeds allocation arguments or accountings were all avoided along with the potentially substantial expert and legal fees attendant to such procedural requirements. Rather than presume some or all of the foregoing would be necessary hoops through which the parties were required to jump, even if consensually, counsel cooperatively approached the global resolution with a collective eye towards minimizing time and expense for all involved while assuring that procedural corners were cut in such a way that no rights were prejudiced. Faced with having to choose form or substance, sometimes “all of the above” works best!
November 16, 2023
Family Law
Traveling with Babies Recap
Originally posted 12/18/18, no content changes. Does anyone enjoy flying with a baby? Infants themselves certainly don’t like the experience, but neither do their parents and aisle-mates. Young children’s cries and frequent needs (for food, attention, and diaper changes) can cause significant irritation on the part of other passengers. As a result, parents may experience anything from angry glares to scolding and threats. It’s enough to convince some families to stay at home or restrict travel to locations within driving distance. A news story from the Washington Post may dissuade more parents from taking their children aboard. According to The Washington Post, a crew member allegedly told a United passenger her baby’s behavior was “absolutely unacceptable” and claimed the company’s rules prohibit infants from crying for more than five minutes. Although United apologized and issued a refund, this egregious story belies the fact that unprepared parents often do make mistakes during air travel, writes the Post’s Christopher Elliott: Crew members have mixed feelings about babies on board. They want to welcome all passengers and make them as comfortable as possible. And privately, they often tell me young children aren’t their biggest problem; it’s their adult travel companions, especially new parents who tend to make a lot of mistakes. The errors include being ridiculously unprepared, acting as if any advice they receive is “baby-hating” or “mom-shaming” — and not knowing what to do with diapers. You can read the full article, “The do’s and don’ts of flying with babies,” here. We may not be able to guarantee comfortable air travel, but Offit Kurman’s Family Law attorneys can assist with virtually any legal matter you or your children might face. While it can be a bumpy ride, so to speak, you don’t need to fly solo. See how we can help.
November 16, 2023
Family Law
Divorce-Planning: What You Need To Know Now
Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.i Originally posted on 09/15/2020, content updated on 11/15/2023. Tumultuous marriages often turn into tumultuous divorces. Yet many who find themselves in such marriages and resultant divorces are actually taken aback by their spouse’s decision to end their marriage. Even those who assumed their spouse was contemplating a divorce are often dumbfounded to learn their other-half had been planning the financial part of their split for months - even years before filing for divorce. The pre-planning of the financial facets of divorce is so common an occurrence today that it has a name -- divorce-planning. Divorce-planning is neither illegal nor immoral. It is unquestionably smart, and one who does not engage in such preparation will in all likelihood turn the painful process of divorce into a devastating one. The Five Signs Anyone claiming disbelief of their spouse’s divorce-planning either missed or ignored one or more of the indicators of financial pre-planning going on right before their eyes. Though every marriage has its own distinct approach to financial management, there are five indisputable indicators that transcend nuptial uniqueness, and signal that your spouse is engaged in divorce- planning. First: intensified irritability and/or noticeable evasion of questions concerning finances. Once divorce-planning is in motion there may be a noticeable reluctance to discuss the family budget, spending habits or the manner in which (and where) marital income or assets are invested or maintained. If your spouse has nothing to hide, then he/she should have nothing to fear in discussing your marital finances. Second: paper account statements no longer arrive at the marital residence, and other financial documents, especially income tax returns and back-up documentation, are no longer accessible or locatable in the home. Thanks to on-line access to banks, credit cards, brokerage accounts, and the like, a divorce-planning spouse has the ability to receive financial information by email, or by logging into the particular account, or through an “app.” A trusting spouse may not ask why, or even notice that paper statements are no longer being received in the mail, or that financial documents are no longer maintained in the marital residence. Online account access allows a divorce-planning spouse to hide a new bank account, credit line, or credit card from their spouse completely. Removing financial documents from the marital residence will delay the availability of such documents to the other spouse.ii Third: passwords /“PIN” numbers change. It is recommended that everyone change passwords and “PIN” numbers often so as to avoid “hacking.” There should be no reluctance to share new passwords and/or “PIN” numbers between spouses. Discovering changes in passwords and/or “PIN” numbers of which you were not informed may indicate a desire to hide activity. Fourth: requests to alter names on assets. New York and most states recognize a spouse’s marital interest in businesses, real estate, and other assets regardless of the title in which the asset is held. However, if one spouse’s name is removed from ownership of the asset, it will be significantly more difficult for the removed spouse to be apprised of transfers in ownership or the creation of liens against an asset, potentially decreasing the value of the asset in the divorce. If your spouse asks you to voluntarily remove your name from an asset -- or you discover that your name has fraudulently been removed from an asset -- divorce-planning is in progress. Fifth: threats of retaliation. Spouses may joke on occasion about what would happen, or what they would do if their spouse divorced them. However, if a spouse makes veiled references about leaving their spouse destitute or taking their child(ren) away from them, such remarks must be taken seriously. A spouse threatening or trying to control the other is probably stalling in order to complete their divorce planning. Further, remarks such as these are often intended to intimidate the other spouse from preparing themselves for divorce. The Game Plan Proactive planning -- divorce planning – should begin at the earliest sign that divorce is on the horizon. Do what needs to be done for your financial protection. Consider, and effectuate as many the following recommendations as possible: Finances, Privacy, and Asset Protection Stop using the family computer. Back up all computers/devices with all data and pictures on a portable hard drive (or use a cloud-based backup). Purchase your own computer, password protect it and keep your new computer away from your home, in a secure location. Change ALL of your passwords and “PIN” numbers. Open a new email account and use it exclusively for communication with your divorce attorney. Obtain a mailbox at a UPS Store or a P.O Box at a Post Office. Use that address for any and all personal mail/packages. Make copies of all account statements, bank, brokerage, credit card, IRA, 401(k), pension and profit-sharing plans, and tax returns for the last three years. Learn everything you can about your family's finances, your spouse's income, and the cost of running your household and collect the paperwork to support that knowledge. This will give you a head start on gathering those documents; you will need them during the divorce action. Put aside enough money for living expenses – approximately six months’ worth – and deposit the money into a separate account, in a bank where neither you nor your spouse has other accounts, and title the account in your name alone. Access and review the statements online only. Update your Will and exclude your spouseiii; amend your Power of Attorney, Medical Power of Attorney, and any other estate planning documents. Change beneficiaries on your life insurance, IRA, and retirement accounts.iv Open at least one credit card in your name only. As above, access and review the statements online only. Obtain a new/additional cell phone, with a new phone number, on a carrier different from the one you currently use. View/access the statements/bills for your new phone on-line only. Add your attorney to your contacts under a pseudonym. Consider what items in the marital residence have a particular meaning to you, perhaps a family heirloom, family photographs, or antiques. Determine which items you would be saddened to lose if your spouse removed them. Be prepared to remove these items when your attorney tells you. Take photographs and videos of the inside (and outside) of your home(s) clearly showing furniture, art, antiques, and your other belongings then in existence so that you can note in the event something “disappears.” If you have a safe deposit box, make an inventory of, and photograph its contents. Put your passport (and those of your child or children) in a secure place, away from your home. Managing Personal Expectations Divorce-planning is not solely a mechanical/financial process. It is also time to take stock in yourself emotionally (and physically) and find the best professionals to guide you through what will be a difficult period in your life. If you have not done so already, start seeing a psychologist to counsel you through your own transition issues. Join and attend appropriate support group meetings. If you do not have a therapist/psychologist or some other form of a counselor, start researching, and obtaining references for one for yourself and one for your children. Divorce often has a deep and lasting psychological effect on the children of the marriage, subtle though it may seem on the surface. As part of divorce- planning parents can and should take steps to reduce the psychological effects of divorce on their children. Start by seeing a counselor or therapist for yourself, and then lead into hiring a counselor/therapist for your children. Perhaps the most important part of divorce-planning is the selection of an attorney. Do your research again. Hire a highly experienced divorce attorney, fund the retainer, and follow your attorney’s advice. If your attorney advises it, meet with other leading divorce attorneys to conflict them out of the case.v Last, but not least, be mindful and wary of social media and other pictures, texts, and emails. Anything you post or publish can be used as evidence in Court. Do not post anything that you would be embarrassed to see on the front page of a newspaper. And, do not start searching for your next love interest during the divorce-planning period. Stay off of any dating website. Conclusion Divorce -planning is not about hiding, dissipating, or wasting marital assets. It is about protecting yourself and your assets and making shrewd choices when your mind is clear, long before you are caught up in the whirlwind of divorce. It requires logical preparation in the months leading up to a divorce. There is no blueprint for marriage, neither is there a blueprint for divorce. But diligent, pragmatic, and early preparation --- divorce-planning -- can start you off on a better footing, and ease the path ahead. i Sun Tzu: The Art of War Divorce laws of all states provide that both spouses have the right to “discover” (obtain) virtually any financial document or piece of information about the other spouse and the marriage going back to the day the parties married, However, a bird in the hand is worth two in the bush -- it is better to hold onto these documents, have them in your possession than to risk the time and effort in trying to get them back. iii See a Trust and Estate Attorney in your State. In some states excluding a spouse does not guarantee that he or she will not receive any monies from your estate. iv Sometimes you cannot do this until you are officially divorced, but try to do whatever you can now. In addition, upon commencement of a divorce, it is likely that you will be restrained from modifying assets including changing beneficiaries on a life insurance policy. So make the change now. v This is a highly controversial, and “hardball” move. It is an aggressive tactic. It is certainly part of the divorce-planning strategy but is often looked upon as sharp practice.
November 15, 2023
Page 20 of 35
About the Blog
Receive timely content, newsletters and event information delivered to your inbox.
