I had a cool and inspiring lawyer experience recently. I was in court with a client who had been treated poorly for more years than anyone ever should. As we waited our turn, we chatted about my client's children and a recent vacation. Our case was called, and as we took our seats with the opposing party six feet away, my client sat, hunched over with both arms crossed, looking at the ground. I made my argument, we prevailed, matter ordered in our favor. Yay! So exciting! But more exciting was that after the judge rendered a decision, my client became six inches taller right in front of my eyes. We left the courtroom to discuss the results, and although the issue I was arguing had been pretty routine, the immediate impact its outcome had on my client was remarkable. From that moment through the rest of the day, my client was brave. For the first time since the start of my representation, my client had courage. And I thought, wow, how very cool is it that I can empower a person by just doing my job?
All weekend I have been thinking about empowerment. We hear so much in the news these days about organizations empowering women by offering experiences and products and jeans that are properly tailored for diverse bodies. Empowering a healthy lifestyle offering a website with recipes calling for exotic and holistic spices. 'Empower,' 'empowering,' 'empowerment'...it's hard to know what these words mean anymore.
I believe “EMPOWERMENT” means a person's having the ability to drive his or her own life outcomes. A person having choice. A person having decision-making autonomy. A person feeling safe. When a person has been falsely arrested for something small, knowing there are real options other than paying a fine and accepting a criminal record. When a person is going through a rough divorce or custody battle, or a small business owner is struggling to have a go at it...there are choices. Working as an attorney within the law to support a client's efforts, or to return to someone the choice or autonomy or drive or feeling of safety that was at one points taken away. My mission as an attorney is to empower every client...to help each feel taller and stronger with every interaction.
Not all cases have an immediate outcome with a thrilling decision. Many issues take some time to resolve. But…one thing I do in my practice of law is work to empower my clients with choice. There are many modern and innovative ways to empower people through the law, and there is rarely a scenario in which there is absolutely no choice, no option, no way out. I am proud of my client for recognizing that there was an option, and going after it. And am still so excited to watch my client feel brave and empowered for the first time in a very long while.
Dr. Kathleen M. Linnane, Esq.
"An ounce of prevention is worth a pound of cure.” Benjamin Franklin said this many years ago, referring to fire safety preparation. This still holds so very true, however, in today’s startup climate.
The world of startups and small business ownership is a chaotic one. Entrepreneurs and small business owners typically focus on fundraising and marketing, assuming multiple roles to save costs where possible. Initial hires usually include members of the c-suite, perhaps a support team…but counsel often fails to make that list. For a startup, failure to hire counsel is a huge misstep, as small oversights in the beginning cause significant problems down the road, and once you’ve been sued, it’s sometimes too late to recover.
Some of the very common issues that we see include :
LLC vs LP vs S Corp…? A business owner's failure to choose the right legal business entity is a problem from the get-go. Certain types of business entities require that type-specific forms and documents be filed with the government. Compliance with government requirements becomes an issue from Day 1 if the wrong business entity is chosen. Starting an LLC can easily be done online, but if this is not the proper type of entity for a particular business and the necessary elections are not made upon filing, long-term tax and legal consequences very often result.
Asset protection. Many business owners do not know the broad differences difference between a copyright and a trademark. Or what the ‘Registered’ symbol means. Or when a cease and desist order is proper. Asset protection should be on the top of every business owner’s mind, but without the proper legal protections in place, innovations can be easily copied and trademarked by another party.
Employees. Most business hire employees. Some companies contract with independent contractors, some hire employees. In either case, without proper contracts in place, including necessary nondisclosure protections, and in the absence of compliant employment practices and regulatory policies, business owners open themselves to enormous amounts of risk and potential lawsuits.
Nondisclosure agreements. Using internet NDAs is NOT good practice, as most are not strong enough to hold up in court and fail to provide mutual protections. Non-compete agreements, if not precisely drafted to suit a specific business scenario and business purpose, do not hold up in court. Businesses should work with counsel to ensure NDAs are mutually beneficial and allow for necessary disclosure while also avoiding risk.
Have a website? Privacy policies and Terms of Service are required in many states to help protect user information.
Each of the issues above is one that counsel would typically easily manage. Startups and small businesses without internal counsel still need legal protection. Working with a lawyer from the early stages is critical not only to lay a proper legal foundation for the business, but also to maintain ongoing compliance. A bit of due diligence early on will save a lot of money in the end.
Any individual considering starting a business, or any entity needing legal support, should seek the assistance of appropriate legal and tax advisors. Work with Linnane & Associates to build a legal strategy to support your business growth goals! Consult us for some guidance.
There’s been a lot of buzz in the past few days about the “pet prenup” – happy to see this in the news just days after our last blog post! Pets are increasingly becoming a part of couples’ prenuptial agreements, because although a pet is often considered a part of the family, a pet is treated as an asset in a property division. And like a piece of art or a house, pets are often used as bargaining chips in a separation. You give this, you get that…more or less.
Couples are increasingly opting to sign prenups…a wise decision and smart move, for MANY reasons. Not because couples anticipate a failed marriage. Not because people don’t trust their future spouse. But…as the marriage age is creeping up, so is the accumulation of assets and other sorts of wealth acquired by individuals prior to entering a marriage. People entering modern marriages often have pre-marriage business interests, larger retirements accounts than in years past, and in the United States, people also have more significant debt.**
A prenuptial agreement functions to protect both spouses in the event of an unfortunate end to a marriage. How many times have we heard a friend say he or she was in complete shock when divorce papers were served? Even a quick internet search returns results showing people are interested in learning how to file for divorce without a spouse knowing beforehand. At the end of the day, no person can ever know what will happen tomorrow, two years, or ten years from now…and when the going gets rough and divorce gets emotional and irrational, divorcing spouses are known to deny the existence of assets or even fight over a spatula.
However, a prenuptial agreement should never be thought of as a pre-divorce contract, nor is it a tool to adopt in anticipation of having leverage in future disagreements. Instead, a prenuptial agreement is a tool that facilitates pre-marriage communication. Prenups force couple to engage in necessary discussions about financial expectations during the marriage, about spousal and family support during future growth of the family, and about taking on and handling future debts, among other things. A prenup enables these conversations, encourages them to occur when couples are happy and excited about the future, anticipating a long and successful marriage before the fighting has begun.
A prenuptial agreement is a modern, proactive tool all couples should strongly consider, as it fosters complete disclosure and peace of mind, and in the event of an unfortunate separation, provides a roadmap for a less conflicted divorce with no fighting over the spatula or the dog.
**Student debt follows the debtor in the event of a separation, but a prenup can specify that any marital assets used to pay off one party’s student debt during the course of the marriage must be taken into consideration in the property division.
Any person planning to marry or divorce, regardless of income or assets, should seek the assistance of appropriate legal and tax advisors. Work with Linnane & Associates to plan for your life and marriage goals. Consider pre-marriage counseling…consult us for some guidance.
A recent article in Vanity Fair boasts, “Jason Momoa, Lenny Kravitz, and Lisa Bonet have Mastered the Modern Divorce,” and goes on to discuss how the self-professed bros are the best of friends despite Momoa being married to Kravitz’ ex-wife, Lisa Bonet.
A truly modern family. We are not sure ex-spouse friendship rings are for everyone, but Bonet, Momoa, and Kravitz sure got something right…a modern approach to their relationships (or at least one that is making plenty of headline news!)
The modern marriage is becoming less and less about traditional roles, and more about compromise and equality between marriage partners. A marriage is about merging two lives. And with that, merging assets, planning for the future, and choosing a person to be your closest relative. Your spouse is the person you choose to share your life, whom you designate to inherit from you, and who will make decisions for you in the event you are unable to do so. Mastering the modern marriage is all about setting the stage for these and other important life decisions.
Modern pre-wedding preparation must include more than flower choices and cake flavors. We all love cake!! But we, as human beings, also love knowing that important life decisions are in our control. Pre-wedding prep should always include sensible legal counseling to build a foundation that enables choices that align with what couples really want.
Wills, for example. Every couple should have a will. Not out of a fear of death, but for estate planning. A will designates where assets will go. Without a will, a couple’s assets can end up in probate court and sit there for YEARS.
Children? Who will be a child’s caretaker in the event that a couple is no longer able to care for the child?
Surgery. In the event of a standard surgical procedure or in an emergency, a patient’s spouse is responsible for making any decisions that need to be made when the patient cannot make them (i.e. under anaesthesia). Oftentimes someone other than the spouse would be a better decision-maker. An understandably emotional spouse is very often unable to make the best choice, or the choice that the patient expressed before 'going under'. Sometimes another family member has medical expertise and is known by the couple to be the better decision-maker...the responsibility still falls on the spouse. In any event, unless medical decisions or designated decision-makers are specified in a living will or medical proxy, any harrowing medical choice is left to a distraught spouse.
Pets? Who will take the dog in the event of a split?
Couples need to think beyond the party. Life happens after the party, and so do life decisions. It’s not only about a prenup, which is also important, but about SENSIBLE, real-life legal conversations that each couple should have before they marry. Celebrate and dance and have cake, and maybe trade BFF skull rings, but master the modern marriage by preparing for a successful future!
If you are one of the almost two million New Yorkers who each year use the state courts without assistance of a lawyer (DIY justice!), you may have first-hand experience with the vast inefficiencies of the system. In fact, New York State for some time has been making efforts to streamline access to justice… attempting to enable access to the courts with a “DIY” process. DIY forms, DIY filing, DIY representation.
This isn’t particularly a new concept. Legal forms have always been accessible to the public. Enter the courthouse, fill out a form with the necessary information, file or dismiss a case! However, a DIY process will rarely enable true justice or streamline accessibility. DIY encumbers an already overburdened court system. And too often, DIY = DI-SASTER.
The right to self-representation has been protected in the United States since the country’s founding, and the breadth of this right has been debated all the way up to the Supreme Court. A person accused of a crime is entitled to representation, but is also entitled to refuse that representation. Criminal courts have decided that while perhaps unwise for an accused to refuse assistance of counsel, the court has no right to force a lawyer upon a defendant. In civil courts, those courts dealing with non-criminal matters including divorce and child custody, business disputes, tenant rights, and personal injury, courts where there is no such entitlement, some people choose to hire lawyers while others believe that self-representation is efficient, cost-saving, time-saving, and empowering.
In New York, where legal services are in high demand, representation can be quite costly, and many people involved in civil litigation choose to represent themselves. Most assume taking a DIY approach will save costs and save time.
This assumption might seem to make sense. However, DIY forms and self-representation are inefficient and often ineffective for a person seeking justice. DIY forms and self-representation are inefficient for the court system. DIY forms and self-representation tend to cost litigants substantially more time than if a lawyer had been used. In short, DIY can spell disaster, and the DIY approach has significantly contributed to New York’s years-long backlog in its civil court system.
Legal forms are not easy for most people to understand. They are difficult to fill out. Legal forms require that a person decipher complex legal language and understand confusing questions. Most types of legal matters involve the use of multiple forms, and these forms require precise answers that if incorrect or missing, will result in the form being rejected. In the absence of a properly completed and filed form, a DIY litigant cannot even take the first steps to enter the legal system and access justice.
Inside the legal system, DIY litigants with inadequate knowledge of rules and processes regularly consume hours of the court’s time by, among myriad other things, appearing without proper information, by making inappropriate or impossible requests of the judge, or by presenting “evidence” and arguments inefficiently and overlooking key points. Courts are rules-driven, and procedural rules are not flexible. Judges and clerks are regularly forced to postpone hearings once a litigant has already appeared in the courtroom due to faulty paperwork or missing parties. Postponements can be for periods of months. More importantly, because most DIY litigants are not versed in the nuances governing the presentation of facts, presenting and questioning witnesses, or even of making objections, the DIY litigant will not prevail in the courtroom or the case will be dismissed.
DIY filing and representation can have serious consequences. In matters where even a clear-cut matter can have a significant outcome, such as a child custody dispute or a business-related litigation, navigation of the legal system by a self-represented litigant can result in an unsatisfactory, unjust ruling that might take years to appeal. Failure to properly present a simple piece of evidence can result in lost custody. Failure to reply on time to a simple suit received from a business competitor can result in a lost trademark. Tip the scales in your favor and choose to work with counsel, whether just for filing paperwork or fully navigating the process. It’s more efficient and cost-saving than working to fix a bad outcomes after a DI-SASTER.
Any person involved in a legal matter should seek the assistance of appropriate legal advisors. Linnane & Associates is a multi-practice firm offering expertise and advice for a range of legal issues. Consult us for some guidance.
*For most recent updates to figures and research used herein, consult www.nscs.org
Welcome to the Linnane & Associates blog!
Here is our opportunity to take a casual, yet deliberate, approach to discussing various legal issues that matter to us at L&A. We might take a look around at the sometimes broad, or sometimes narrow, scope of impact a change to a law might have. We might discuss some new state laws, or discuss local laws that have been eliminated. We may analyze issues of concern to our firm, and issues that could impact those in our community. We might discuss policies that differ between bordering states. And we might post a picture of something we think is very impactful.
Whatever the topic, we hope you as our readers find value. Keep an eye out for our weekly posts and let us know your thoughts!
Changes to alimony under the Tax Cuts and Jobs Act? ...who knew?
Divorce is unpleasant. Divorce is a more than a process of separating lives and protecting children…it’s also about dividing assets and negotiating the future. Divorce often involves alimony, and alimony, while often perceived somewhat differently by the two parties to a divorce, is a financial structure generally encouraged by the government to provide support to the lower-earning spouse for a period of time post-divorce, based on a variety of factors. The federal tax structure governing alimony was traditionally used to motivate negotiation between the parties, and to support success as individuals following the difficult process of separation. For many years, this structure has benefitted both spouses involved in a divorce.
On January 1, 2019, the federal government will roll out a new set of tax guidelines hidden within the Tax Cuts and Jobs Act that govern alimony payments. What is this new tax treatment, and how will it affect the payment of alimony between divorcing spouses?
A general goal of any government is to foster decisions that benefit society. A typical alimony settlement provides that alimony is paid by the spouse with the higher income to the spouse with the lower income. Under the current tax guidelines, dollars paid as alimony are not taxable income on the paying spouse’s federal tax return. Rather, that money is taxed at the appropriate rate on the receiving spouse’s federal tax return. Because the receiving spouse is also the spouse with the lower income, that money is therefore taxed at a lower rate. In effect, the paying spouse gets a tax break on alimony payments made to the receiving spouse, and the receiving spouse gets support payments for a defined amount of time. A benefit to both!
Divorces completed by the end of 2018 will not be affected by the upcoming changes to the tax law, and the new tax law will not affect any alimony payments made under pre-2019 divorce settlements once the new tax law kicks in. Any divorce settlement reached on or after January 1, 2019, will be subject to the new guidelines.
Under the new tax law, there will no longer be a reduced federal tax rate on alimony payments. Money paid as alimony will be taxed at the same rate as all income earned by the paying spouse, and the receiving spouse will pay no federal taxes on alimony payments received. The result? Not a windfall for the receiving spouse. Instead, a higher tax burden for the paying spouse, and less money to go around. One might ask if the government indeed believes this change will foster negotiation, if this change will ease the settlement of a divorce action, or if it actually serves to make a divorce more bitter. The change to the tax law eliminates the tax deduction for the high-paying spouse, and also arguably eliminates one of primary incentives for negotiating through and finalizing what can be a lengthy, emotionally-destructive, and costly divorce battle.
Whatever your perspective of alimony, whether you view it as a necessary financial support, a useful financial incentive, or merely a forced means to an end, we believe that negotiating a fair and effective divorce settlement requires not only a thorough examination of assets and liabilities, but also of future goals. Divorce is a highly-charged emotional event, embroiling spouses in conflict which often stalls any pathway to negotiation. Divorcing couples must consider that under any tax structure, tax break or no tax break, a divorce, consequential living apart, and disentwining lives results in financial trauma for all members of a family. However, divorce remains a necessary solution to what is so often a highly volatile situation.
Any person planning to divorce, regardless of income or assets, should seek the assistance of appropriate legal and tax advisors. The new alimony tax structure does little to ease divorcing couples or support simple negotiations. Let Linnane & Associates offer that support to you instead! We partner with you to find a solution that will ease the brunt of the trauma of divorce, and reach equitable outcomes that encourage your ongoing success. Don’t let the new tax law become a roadblock to your successful outcome…consult us for some guidance.
Last week, a criminal court judge in New Hampshire ordered Amazon to release recordings collected by an Echo device that was in the home of a murder victim. The Echo device, the court argues, may have recorded the murder of the victim, and the recording should be available as evidence of the crime.
Murder, clearly, is one thing, and use of evidence in criminal courts is highly case-specific and very carefully considered. But in any type of legal matter, and in day-to-day activities…we live in a time when digital information sharing is constant. And if involved in a legal matter of any kind, no matter how small, each party must think about every single piece of information actively or passively posted to social media or other digital outlets, including texts and fitness tracking applications.
The quickly-changing nature of apps and use of social media has created challenges in legal proceedings as courts decide how to handle evidence collected by new and always-changing technology under long-standing rules and procedures governing the use of evidence. That being said, rulings about the use of digital evidence are often inconsistent, since the rules can’t keep up with evolving technologies. Judges have permitted the use of instant messaging and electronic chats as evidence in a recent child abuse case, and in a 2018 assault case in Queens, a screenshot of a text message was used as evidence of an admission of guilt by the accused party. Digital evidence has been used to prove that a party was hiding assets stolen from his employer, and pictures posted on social media, even when not “shared” with other parties to a lawsuit, have been used as evidence of extramarital affairs or perfect health in personal injury suits.
While courts continue to evolve their own set of laws guiding the use of digital evidence, users of technology….BEWARE! While marriage might not be forever…the risky Snapchat posts are.
Kathleen Linnane is the Managing Partner of Linnane & Associates. Check back for our weekly blog updates about current legal issues of interest, and how changes and updates to the law might affect you and your community.