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RetiredinVA

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Everything posted by RetiredinVA

  1. Whether you are an independent contractor or employee depends on certain characteristics of the relationship. The determination is fact driven and must be determined on a case by case basis. The criteria used by the IRS are: Common Law RulesFacts that provide evidence of the degree of control and independence fall into three categories: Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job? Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.) Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business. Similar criteria apply to determining an individual's rights to worker's compensation and other benefits. The question is so broad as to prevent full explanation on this forum. ------------------------------------------ But, I sense your particular problem is whether the company that "contracted" with you can refuse to "contract" with you because you violated a company policy. The answer is simpler than you imagine. The company dispatching you can refuse to contract with you regardless the reason unless they refuse to do so because of a violation of a protected status, such as race, religion, sex, nationality, etc. If, on the other hand you are an employee, they can fire you unless you have a contract with them, are a member of a collective bargaining unit, or the firing violates a protected status as described above. In other words, it probably doesn't matter whether you are an employee or an independent contractor.
  2. You can obey the court order granting the father visitation. You don't have to worry about the police showing up to arrest you. Violation of a custody order is done by making a motion to hold the other party in contempt for violating the order, not by arresting the other party. The father could clearly do that. Also, you might consider taking remedial writing and punctuation courses. Your son would benefit from your assistance as he develops if you can provide such assistance at home.
  3. You did not identify the state where this occurred. However, your potential claim against your father would almost certainly be barred by the statute of limitations in your state. You might try googling "statute of limitations oral contract" and your state's name. BTW, how would you like it if your father countersued for the tens or hundreds of thousands of dollars it cost him to raise you to the age of 16?
  4. The claim for the child support is against you, not the trust. The publication may bar claims against the trust but it does not bar claims against you. The trust is required to honor the claim against you as if it were a garnishment.
  5. The idea of having two trusts is highly unusual, but that is the least questionable of the issues that might be involved. The main issue is that you say your sister has a POA from your parents. A POA nominally allows a designated agent (attorney in fact) to act on behalf of her principal as set out in the power. However, in the situation you described it would appear that your sister intends to create a trust in which she might be the beneficiary. I would question whether the power would allow that. An attorney in fact is authorized to act for the principal but owes the principal strict fiduciary duties to do so only as it benefits the principal. In other words, an attorney in fact usually cannot give the principal's assets to herself. I have not read the power of attorney in question but that thought comes to mind immediately. Second, I wonder why it is necessary to create these trusts in the first place. Trusts, especially irrevocable trusts, are normally used as an estate tax avoidance technique. That would imply that the value of the joint estate is in excess of the estate tax exemption which, as I recall, is in the neighborhood of $5,000,000 dollars. (I am sure Tax Counsel will correct me on that.) If that is the case, the IRS might very well perk up its collective ears and query whether a last minutes creation of trusts by apparently incompetent taxpayers will be honored. It would also require the filing of gift tax returns which might eliminate any estate tax savings. Another attempted use of such trusts is to eliminate the estate of the elderly in order to qualify for medicaid. Rest assured that the medicaid folks have seen this before and will not be happy. They will undoubtedly claim these trusts are fraudulent conveyances (look it up) and have the trusts set aside. Okay, I am mentally wandering. It is not clear how the attorney you mentioned above fts in this matter. Was he retained to represent your sister, both of you, or your parents. I would strongly suggest you get your own attorney and present all the facts to her.
  6. Be very careful. I had a very similar case. Critical question: did the will leave the estate, or any part of it, to the old girlfriend? If she was simply nominated as the executor and can't be found, the preceding suggestion is correct. If she was also the beneficiary of the estate, or any part of it, then you must find her and turn the legacy over to her. If she is a beneficiary and you cannot find her after due diligence you will have to turn her legacy over to the receiver for your state, or to the court, depending on your state's laws. The lapse of time does not make the will invalid. I might note that faillure to probate a will that leaves part of an estate to someone in order to prevent that person from receiving their legacy may be considered fraud and have severe consequences. But, if she a beneficiary and she predeceased your Dad, then the legacies may have lapsed. Whether the legacy lapsed is a matter of state law. You should consult with an attorney who can review the will and advise you how to proceed.
  7. The real question here is whether you are in a position to reveal secrets that you have learned from working for your present employer. If you are merely tightening widgets on a frammis then that would probably not be a problem. But if you are a design engineer, sales manager, or such then your current employer would be justified in firing you and even suing you for revealing trade secrets. A very simple test: would you be comfortable telling your current supervisor that you are working for the competitor. If you would be reluctant to do that, then you probably have an ethical problem. It's not that complicated.
  8. I yield to Ted regarding Texas law and procedure. But, I suspect there may be a procedure short of divorce to establish custody. In Virginia we have Juvenile and Domestic Relations courts to deal with such matters. Since filing for divorce presumes the existence of grounds for the divorce, it is not always the best way to attack these problems. Also, because these problems frequently occur outside of marriage I would assume ther must be such remedies available. I leave it to Ted and/or others to confirm whether such alternatives exist and how they may be utilized.
  9. Little surprised you weren't arrested when you re-entered the country!
  10. I don't suppose it occurrred to you that they are not applying the "non-refundable pet deposit" to the charges. So, $325.54 - $100.00 = $225.54. Read your lease and attachments to see if the "pet deposit" is not a deposit at all and report back.
  11. Your Father will have to petition the court that entered the custody order to change the order so he can have custody of you.
  12. Divorce is, by definition, an adversary process. Therefore, one attorney cannot represent both parties. I am absolutely certain that Kansas, or any other state, would not require that both parties have the same lawyer. However, one attorney can draft a settlement agreement for one of the parties which can then be presented as a proposal to the other party. The attorney who drafts the proposed settlement agreement should take care to not give the party he is not representing any reason to believe he or she is also their attorney. It is a very fine line to walk, but it is essential that the parties are clear about who is the attorney's client. It is certainly possible for one parent to be the sole custodial parent of the children. That is probably the most common arrangement. The other parent will normally have visitation rights and joint rights to monitor and be involved in education and health care. The criteria is the best interest of the children while also respecting the parental rights of the parties. Alimony (aka spousal support) has no relatiion to child support. Child support is always continued until the child reaches majority or reaches some other defined state, such as graduation from high school or court decreed imancipation. The amount of child support is commonly determined by a statutorily defined process, usually based on the joint income of the parents and the relative shares of income of the parents. Alimony is usually determined by a myriad of factors including relative ability to support one's self, education, length of mariage, contribution to the marriage, vocational experience, etc. In this case the alimony is apparently rehabilitative alimony, paid to allow the spouse time to re-enter the work force. Alimony and child support can be paid in many ways, including voluntary party to party payments, wage garnishment, or payments through a state agency. Having said all that: What is your interest here? The divorce is apparently final. There is nothing you can do about it. In fact, you have no standing in the case at all. Please do not criticize your daughter because you think she made a bad deal. Support her.
  13. The appellate court will not consider statements that are not on the record. Ineffective assistance of counsel is generally based on what was or was not presented to the trial court. It sometimes occurs, especially in capital cases, that matters extraneous to the trial are considered. Evidence of such evidence is usually developed during habeas corpus hearings in a federal court after the appelate court is finished.
  14. What is a "fair trade agreement" in domestic relations cases? Are you talking about a "settlement agreement?" Your ability to file for divorce has nothing to do with whether your husband agrees about child custody and support. Those are usually two of the main issues determined by the court in a divorce case. The other issues to be decided by the court are spousal support, distribution of property and debt. The court can decide the issues presented during the case or the parties can enter into a settlement agreement. If the court decides the issues it will enter a decree. It is usually not a good idea to purchase a house while a divorce case is pending or if a divorce case is immenent. It just presents another issue to be decided by the court or the parties. Of course, I am assuming that you have grounds to file a divorce. The grounds may include separation for a specific period, adultery, incarceration, abuse, fraud, or, in some states, mere incompatibility.
  15. Since seven previous posters have concluded and advised that you are clearly at fault it would appear that you will never accept responsibility. Further discussion is pointless. (However, if the other party was injured I would love to represent her and cross examine you about your aggressive driving. The jury might come out of the box and beat you up on the spot.)
  16. No. If you are thinking of adverse possession it doesn't work because of the lot is permissive. Adverse possession requires that the possession be hostile. Is your parking the truck in violation of the condo covenants? Have the covenants recently been changed? Are the threats coming from the condo board or the local police?
  17. He said the surgery was "for personal reasons." Firing him because of a comp claim would be illegal. But, he is not even sure he was fired. COBRA FAQs are at: http://www.dol.gov/ebsa/faqs/faq-consumer-cobra.html Qualifying Events - Qualifying events are events that cause an individual to lose his or her group health coverage. The type of qualifying event determines who the qualified beneficiaries are for that event and the period of time that a plan must offer continuation coverage. COBRA establishes only the minimum requirements for continuation coverage. A plan may always choose to provide longer periods of continuation coverage. The following are qualifying events for covered employees if they cause the covered employee to lose coverage: Termination of the employee's employment for any reason other than gross misconduct; or Reduction in the number of hours of employment. But, the questioner also said the employer was paying his share of the cost of the insurance for nine months. Without knowing for sure, it may be his participation in the health plan was terminated because he had not paid his portion of the premiums for the insurance. That may require notice similar to, although not technically the same as, Cobra. Also, COBRA kicks in if his hours were reduced. The questioner says he only works one or two days a week. If that is due to the comp related accident, it may be he has a claim for retaliation due to the comp claim. More information is necessary. Consultation with local labor lawyer would be highly advisable.
  18. There is no way anyone on this board can help you. From the perspective of the store this will undoubtedly seem suspicious. It is not at all uncommon for shoplifters to steal items and then return them for cash. That is why stores usually require some evidence that the items were purchased from the store. I am not accusing you or your family of shoplifting. I am merely trying to explain why you are having this problem with the store. Your statement that your relatives cannot even remember the stores where they bought the items is curious. The stores were presumably branches of the store where you returned the items. Do your relatives shop in mutiple stores of the same company? I suggest you press your relatives to find some evidence of the purchases. As to whether the store can or will return the items (or copies of the items) I cannot say but I doubt it. If they conclude that the items were not purchased at their stores they may simply refuse to honor the credit and put the burden on you to sue them and prove you bought the goods from their chain.
  19. I revert to my previous post about the difficulty of proving negligence. I have personaly sheared a lug screw. A friend of my daughter had graciously helped by changing her tire. He cross-threaded one of the lug nuts so badly that it sheared when I tried to remove it. Strong boy, he was. Also, I have had safety inspectors tighten lug nuts, after brake inspection, so tight that I have had to put a three foot piece of conduit on the lug wrench to loosen them and I am a pretty strong boy. I would not conclude that the state employee was negligent smply because a lug screw sheared. That is why I outlined the proofs she might need. Unless the mechanic has metalurgical and mechanical engineering credentials I doubt if he would help her case. BTW it is a very simple repair. The lug screws are force fitted. You drive the broken lug screw out the back with a heavy hammer and insert an new one. That's why it only cost $82. It happens often.
  20. A purchasor at a foreclosure sale purchases only the rights of the mortgagee (bank in this case.) If the mortgaged property is subject to an easement, then it remains subject to the easement. But, if the easement in not recorded and if the notice of foreclosure fails to disclose that the easement exists, that may be a different matter. You should have a local attorney review all the documents and facts of the case.
  21. I might also point out that in the case cited above (Binderup v. Holder) the court pointed out that Binderup had not committed a crime involving dealing in drugs (pages 62-63). The offense committed by Mr. Binderup was having sexual relations with a seventeen year old employee of his business. Since the questioner's husband was convicted of a felony drug offense it is highly likely that the conviction was for possession with intent to distribute and not simple possession. Also, in Binderup, Pennsylvania had already restored the Plaintiff's right to possess a firearm under state law. Finally, the Court in Binderup found that Mr. Binderup was statutorily prohibited from purchasing a firearm. But the Court then went on a long analysis as to whether Mr. Binderup was unconstitutionally deprived of his second amendment right to purchase a gun because he was unlikely to commit a violent act with said gun. In effect, the Court waived the statutory prohibition as to Mr. Binderup based on the facts of his underlying offense.
  22. Sorry, I just noticed that the caption was gun rights for felons.
  23. It doesn't say her husband was convicted of a felony. If you get a gun for any purpose he might be arrested and convicted for possession of a firearm. It doesn't matter if the gun belongs to you. If he has access to it he would be considered to be in possession. Also, if you purchase a gun and your husband has access to it, an enterprising prosecutor might charge you with purchasing the gun as a "straw man" for your husband. If I were you I would not even think of buying a gun.
  24. What couple? BTW, if you are selling the house why do you care if the fence and shrubs are removed?
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