Archive for the ‘ASN Newsletters 2011’ Category

How are retirement accounts like 401K divided in a Divorce without triggering a Tax penalty?

Thursday, November 10th, 2011
How are retirement accounts like 401K divided in a Divorce without triggering a Tax penalty?

How are retirement accounts like 401K divided in a Divorce without triggering a Tax penalty?

Divorcing couples are often concerned with legal fees, child custody and division of assets. Retirement planning may not be priority at first, but it is an inevitable topic for couples going through a divorce.

Divorcing couples typically agree to split and equally divide the funds in their joint savings accounts without any worry – but when it comes to retirement planning, it is not that easy. Taking distribution checks from IRAs or 401Ks are taxable transactions. This is where a Qualified Domestic Relations Order (QDRO) comes in handy.

A Qualified Domestic Relation Order (QDRO) is an approved order made under family law and property law that regulates the terms of child support, alimony payments, or marital property rights during a divorce. A QDRO is required so that a spouse can receive their share of the former spouse’s retirement benefits. A QDRO allows divorcing couples to split retirement benefits without triggering tax or early distribution penalties.

A QDRO is complex – it is advised to have a QDRO organized by a family lawyer because unless it meets the federal requirements and it is approved by a court, it is deemed invalid.

A family lawyer can prepare and review all QDRO court documents that are required in order to transfer pension plan benefits and retirement accounts from one spouse to the other. A family lawyer can prepare the QDRO, get a judge’s signature, file the QDRO during a divorce proceeding and ensure that the pension plan administrator will implement the QDRO.

If you are going through a divorce and need a family lawyer to organize a QDRO, contact Attorney Search Network today. We can help you find a family lawyer in your area that handles QDRO.

New Law Provides Greater Protection for Homeowners in Default

Thursday, November 10th, 2011
New Law Provides Greater Protection for Homeowners in Default

New Law Provides Greater Protection for Homeowners in Default

On July 15, 2011 Governor Jerry Brown signed California Senate Bill 458 into law.  SB 458 amends CCP §580e to preclude holders of any trust deeds securing residential properties, consisting of dwellings of one to four units, from pursuing a homeowner (trustor or mortgagor) for a deficiency where the holder of the trust deed has agreed in writing to the short sale, unless the homeowner has been guilty of fraud or waste, or unless the homeowner is a corporation or a political subdivision.

Prior to January 1, 2011 there was some uncertainty as to the consequences of a short sale where the holder of the first trust deed decided to pursue a deficiency judgment after the short sale had occurred.  The reason is that a short sale is not a foreclosure and thus was not subject to the anti-deficiency protection of CCP§580d.  In a short sale, the lender in the first position forgives the balance due on the loan and releases the security on the real estate in exchange for a payment of an agreed upon amount by a third party, called the “short sale purchaser.”  While there is no known case where a holder of the first has successfully pursued a deficiency after a short sale, many home owners were unwilling to accept the risk that a lender might attempt to do so and for that reason, they allowed their homes to foreclose rather than enter into a short sale transaction.

To resolve any ambiguity concerning the ability of the holder of the first trust deed to pursue a deficiency after a short sale, the California legislators enacted SB931 which went into effect as CCP§580e on January 1, 2011.  CCP§580e precluded the holder of a first trust deed from pursuing any deficiency after agreeing to a short sale and releasing the security interest.  However, CCP§580e did not address the holders of junior trust deeds.  As a result, many holders of junior deeds were agreeing to a short sale but only if the borrower agreed to negotiate with the junior lien holder after the short sale escrow had closed.

To protect homeowners from holders of junior trust deeds who would seek to recover the deficiency, the legislators amended CCP§580e, to include all trust deed holders on qualifying property regardless of the position they hold, provided the short sale is agreed to by said trust deed holders, and the homeowner has not been guilty of waste or fraud and is not a corporation or a political subdivision.   In other words, holders of junior trust deeds are now barred from seeking a deficiency judgment or suing the homeowner for breach of contract on the loan, after a short sale that they have agreed to occurs.  There is no requirement that the property be the residence of the party who obtains a short sale.  The statute applies to any residential real estate property, consisting of one to four dwelling units, where the holder(s) of the trust deed(s) agrees in writing to a short sale, and the homeowner has not been guilty of fraud or waste and is not a corporation or political subdivision.

As amended CCP§580e now provides even greater protection for homeowners facing foreclosures.  This amendment also specifically states that the borrower cannot be required to pay any additional compensation, aside from the proceeds of the sale, in exchange for the written consent of the sale.  Previously, lenders engaged in fraudulent practices whereby the homeowner, or the buyer, would often be required to negotiate outside of escrow and to secretly pay some amount of money to the second trust deed holder in exchange for a release of the lien.  Not only did this activity constitute mortgage fraud but it was also an illegal practice.  Now it is spelled out clearly by statute that this is prohibited.  Further, the amendment states that any waiver of these protections shall be deemed void and against public policy.  While this amendment may lead to borrowers having a more difficult time obtaining the approval of junior lien holders, it will provide those who do obtain the approval with the peace of mind to know that they are no longer responsible for any deficiency.

DW Duke manages the Inland Empire office of Spile, Siegal, Leff & Goor, LLP and is a member of the California Association of REALTORS Strategic Defense Panel.  Michael Wilson is an associate in the Encino office of Spile, Siegal, Leff & Goor, LLP and specializes in real estate law.

Real Estate Law: Boundary Disputes

Saturday, April 9th, 2011

April33Did your neighbor build a new fence that takes up part your property? What if your neighbor added a second floor to their home and it ruins the view you had? In cases involving boundary disputes, you may have legal remedies.

Boundary disputes involve disagreements about the ownership of a piece of property and/or how much area a property covers. It often revolves around neighbors who claim ownership of a part of a property owner’s property and boundary line challenges.

As common as disputes over boundaries are, they come with complex real estate laws and may affect your rights if you are a property owner. When a boundary dispute arises, litigation can help resolve your case effectively.

Real property lawyers have experience handling boundary disputes. Real property lawyers are familiar with land surveying, deeds, property line and fence matters. They can help defend you against any attacks on your boundary rights and help you determine what rights you have as a property owner.

If you are involved in a boundary dispute with your neighbor, a real property lawyer can help. Attorney Search Network can help you find a real property lawyer that handles boundary disputes and other real property matters.

Get Professional License Defense

Saturday, April 9th, 2011

April22Losing your hard-earned professional license can be devastating – it can mean the loss of your career and long-term financial losses. If you’re facing the possibility of losing your professional license, you’ll need professional license defense.

Some of the reasons why a professional license may be revoked include:

  • Criminal offenses/convictions
  • Investigations
  • Citations and fines
  • Substance abuse and impairment
  • Malpractice claims
  • Sexual offenses

Whether allegations made against you are proven false or result in conviction, professional licensing boards may still take legal action against you. If you are faced with a board investigation or inquiry, a professional license defense lawyer can represent you during the pre-accusation stage, in settlement, negotiation, and at the formal Administrative Law hearing.

If you are a licensed professional whose license is in jeopardy, contact Attorney Search Network today for private legal counsel. Attorney Search Network can help find a pre-screened professional license defense lawyer in your area who can handle your licensing issues.

A Tax Lawyer Can Represent Your Best Interests

Saturday, April 9th, 2011

April2Dealing with the IRS can be intimidating, especially if you owe significant back taxes or if the IRS is auditing you. Making the decision to hire a Tax Lawyer can help save you the time and energy it would take to negotiate with the IRS yourself.

If you don’t handle your back taxes properly, the IRS can take money out of your bank accounts or even seize your property. If you have been a dishonest taxpayer and the IRS asks for an audit, you may be faced with a large tax bill. It is critical to take immediate action when the IRS contacts you.

Whether you have issues with income tax, estate tax, gift tax, transfer tax, employment tax, employment tax or excise tax, tax lawyers have strategies that can help you permanently resolve your back taxes, audits and other IRS problems.

Tax lawyers understand how daunting the IRS can be for individuals and/or business owners. They have knowledge in tax law matters and are trained in the numerous interpretations of tax law. A Tax lawyer can advise you on your next steps so you can efficiently solve your tax law problems and move forward.

Make sure your rights are protected by hiring a tax lawyer. Contact Attorney Search Network to be referred to a tax lawyer who can represent you and negotiate with the IRS on your behalf.

Expungements in California

Monday, February 28th, 2011

March3Everyone makes mistakes. When those mistakes make their mark on a criminal record, it can destroy goals, hopes and dreams. Just one criminal conviction can make it very difficult to find employment or make advances in your career, only adding to your embarrassment.

Luckily, California law makes it possible to get an expungement off your criminal record. An “expungement” is court-ordered process in which a criminal conviction or criminal report is “sealed.”

Once your record is expunged, your criminal charge will not come up on your criminal background search for many employers and agencys. Some employers and agencies will still have access, but a vast majority of employers will not see the past criminal charge.

The rules for getting an expungement vary state to state. In most states, there is no expungement for those with felonies or sex offenses. Juvenile and misdemeanor convictions usually are eligible for expungement. Expungements can be especially beneficial for someone looking for a job. In California, most misdemeanors and some felony cases can be expunged.

To qualify for an expungement in California, you need to have finished probation, followed all court orders and have no new charges made against you. After the defined time period has passed, you may be eligible for expungement. To find out more, you should consult a criminal lawyer.

It is important to keep in mind that some criminal offenses cannot be expunged, or will take several years for expungement to take place. Expungement for sexual offenses or DUI cases, for example, should be discussed with a criminal defense lawyer, who can explain procedures and other outcomes.

A criminal defense lawyer can help relieve you from your prior conviction by helping you expunge your record. Attorney Search Network can help you find a criminal defense lawyer that can help defend your rights.

The Importance of Copyrights

Monday, February 28th, 2011

March2If you took the picture, you wrote it, you painted it or you sang it, it can fall under copyright law. Copyright law gives owners protection for their musical, artistic, literary and other works, whether or not they are published.

Copyright registration for your idea or business is important no matter what field it is concerned with. Companies and individuals are advised to register their copyrights in anything that can be valuable in order to prevent someone else from using your copyrighted work without your permission. If they do, you as the owner may be entitled to bring an infringement action against that person. Using a quote or a sample could be an exception to this. However, when in doubt, a person should ask the owner for consent.

Copyrights cover works such as:

  • Books
  • Poems
  • Sound recordings and musical works
  • Paintings, photographs and cartoons
  • Motion pictures and animation
  • Computer software (majority of material on the internet)

Copyrights do not cover:

  • Facts and measurements
  • Short words or phrases
  • Business names and book titles
  • Ideas
  • Processes

Copyright lawyers can help answer any questions about protecting the copyright of work you have created, or determining if someone can legally use someone else’s work. A copyright lawyer can also be useful when going through the process of copyrighting, such as preparing and submitting documents and even drafting license agreements. A lawyer can also help in copyright infringement cases in the event that someone violates your copyrights as an owner.

Can Chapter 13 Bankruptcy Save Your Home?

Monday, February 28th, 2011

March1You find yourself in a sticky situation – your mortgage payments are falling behind and fear of losing your home starts to surface. You start taking appropriate actions by speaking to your bank for a repayment plant, but may still feel that it’s more than you can afford to pay. Other homeowners that have been in a similar experience often turn to filing Chapter 13 bankruptcy as a solution.

Chapter 13 bankruptcy may be a good way to save your home if you are already behind on mortgage payments. Chapter 13 bankruptcy can give you a chance to pay either all or a portion of your debts through a repayment plan. It can give you the opportunity to pay unpaid mortgage payments within three or five years, depending on your income.

Not only can Chapter 13 bankruptcy help you take control of finances that have gotten out of control, it can help save your home. It can help you eliminate payments on your second or third mortgage, stop foreclosure proceedings and modify some debts secured by the property.

Bankruptcy is not something anyone wants to think about. However, sometimes tough circumstances force us to face difficult decisions. A Chapter 13 bankruptcy lawyer can assist you in creating a successful plan to save your home and pay off debts.

A bankruptcy lawyer that practices bankruptcy law can provide you with legal methods to either help you wipe out your debts by liquidating assets and distributing them among creditors. A bankruptcy lawyer can also help explain the primary purposes and applications of bankruptcy laws and how they function.

Third-Party Work Injuries

Monday, February 7th, 2011

February303Injuries happen. Workers’ Compensation insurance can help protect both you and your employer in case you get injured at work. But what happens when you get a work injury but your employer is not at fault?  If you are injured by equipment, machinery or vehicles that are not directly connected to your employer, you have an additional legal remedy against the third-party.

A third-party Worker’s Compensation claim can be brought if your on-the-job injury was from the negligence of a third party while you were at the job site. A third-party is someone other than your employer.

Defective machinery, a trench collapse or car accident while you’re on the job may not be directly your employer’s fault, therefore giving you additional rights against third parties that have an impact on your Workers’ Compensation claim. Some more examples of third-party work injuries are:

  • Falling from unstable scaffolding
  • Falling into an open trench created by another company
  • Injury from defective machinery
  • Injury from faulty work done by an outside company

There is no cap on the amount of damages you can recover for lost wages when it’s a third-party’s fault. You can get recovery for pain and suffering, medical bills, disability, lost wages and loss of quality or enjoyment of life.

For legal help with third-party Worker’s Compensation claims, contact Attorney Search Network. We can help refer you to a Workers’ Compensation lawyer in your area that can help with negotiations and litigation.

Not Rehired After An On-The-Job Injury?

Monday, February 7th, 2011

February202Have you suffered an injury at work and thought about what happens to your job while you are on Workers’ Compensation? Much like the Family Medical Leave Protections Act, there are legal protections in place to help secure your employment while you recover from your injury. This means your employer is often required to welcome you back to an equal level of employment upon your return, but it’s not a guarantee.

The legal requirements vary – every person and every employment situation is different. Some employers may improperly terminate you from employment after an on-the-job injury. If your employer does not rehire you once you can return to work, it is a good idea to contact a wrongful termination lawyer.

A wrongful termination lawyer can assist you in case your employer does not rehire you after you recover. Keep in mind that there are many rules, regulations and requirements that may or may not apply to your situation. In most cases, if there is suitable employment, your employer should offer you your position. If your employer refuses to rehire you without reasonable cause, you may be eligible a victim of wrongful termination.

A position should be offered to you if the employment available falls within your injury restrictions.  A labor law lawyer can help ensure your employer is treating you fairly and lawfully.

If you believe your employer lacked good reason for not rehiring you, a labor law lawyer can help you file an application for a formal hearing. Contact Attorney Search Network to be referred to a labor law lawyer that can help.