There are several advantages to organizing your business as a formal corporation. A corporation is a separate legal entity that is distinct from its individual owners. Businesses that incorporate according to the requirements of state law are provided a “corporate veil” for the business owners. That means that the owners’ personal assets are protected and are typically not used to pay any corporate debts or liabilities. While the limited liability is one of the most important advantages to forming a corporation, there are also tax advantages and it is often easier to attract investors if a business is incorporated.
If you run a business, chances are you either already are confronted with business litigation or will be in the near future. Almost all business people confront litigation or the threat of litigation in the course of their business, whether they are Fortune 500, small or medium size companies, closely held or family owned businesses, internet start-ups or individual entrepreneurs.
Be proactive and anticipate that problems may arise. Retain a transactional attorney to assist you in drafting or reviewing contracts. Discuss your business with a qualified business insurance broker and ensure that you have the appropriate type and amount of insurance.
Read all contracts carefully. If you have any contractual relationship with another party, read the contract carefully and understand your rights and obligations under the contract. Sometimes, a third party may be liable under your contract and may be required to defend and indemnify you from a claim, lawsuit or damages. If this is the case, be sure to fully understand the third party’s rights and obligations under the contract.
If litigation is imminent, see if you can work it out. You may wish to try to work it out with your adversary prior to hiring counsel. Meeting your adversary half way may save you money and avert all out legal warfare. But remember, “Anything you say can and will be used against you in a Court of law.” In the event you can’t work out your problem, assume that anything you say or any letter you write will later be presented to a Court by your adversary. If you were able to work it out, it would probably be in your best interest to hire an attorney to draft a settlement agreement to ensure that the matter is properly resolved. Finally, remember that if you are the plaintiff, your chance of recovering monetary damages is only as good as your adversary’s assets. Many judgment debtors don’t voluntarily pay the judgment… you may have to find and forcibly take their assets through the use of a marshal or sheriff.
Check out your insurance policy and contact your broker. Litigation regarding the matter at hand may be covered under your policy or under insurance that a third party was required to obtain on your behalf. Many contracts require one of the contracting parties to either provide insurance or list the other party as an additional insured. In the event you are covered, promptly notify the insurer in the manner required under the provisions of your policy.
Criminal and Traffic Defense
After you have been arrested, there are certain timeframes and procedures that the prosecution and the Court must follow. Usually, the police will advise you of your Miranda rights (the right to remain silent, to have an attorney present during questioning, etc.) at the time of the arrest. Once you are taken into custody, no statements can be used against you unless the police have read you your Miranda rights, and you have voluntarily made statements which may be incriminating.
If you are arrested, the case is taken before a Judge who will set a bond to secure your future appearance in Court. If you cannot post the required bond, you may be incarcerated pending your initial Court appearance. Once bond is posted, you will remain free pending appearance at your next Court date.
At some point following an arrest, the defendant will be arraigned and formally advised of the offense of which the defendant has been charged, the defendant’s constitutional rights, and of the possible penalties if found guilty. The defendant will enter a plea of guilty or not guilty and the bond may be reviewed and a date for the next hearing will be scheduled.
No. It is legal for the police to question you without the presence of an attorney or warning you of your Miranda rights (notifying you of your rights to silence and to have an attorney present during questioning) so long as the questioning is merely investigatory and you believe that you are free to go and you have not been formally charged. Even if you are arrested, there is no requirement that you have an attorney present before answering police questions. A suspect is free to waive his or her Miranda rights and voluntarily speak to the police without an attorney present. However, once you ask for an attorney, the police, under the 6th Amendment of the United States Constitution are prohibited from asking you any additional questions until your attorney is present.
If you feel you are free to go, you are present of your own free will and you have not been charged, you are probably being questioned in a non-custodial environment.
On the other hand, if you have been arrested, or if you have been detained and do not feel you are free to leave, or you have been given your Miranda rights, you are likely considered to be legally in police custody and therefore being interrogated.
Any statements you make during a custodial interrogation can be used against you as long as the police have read you your Miranda rights and you have waived the right to keep silent or have an attorney present. However, statements you make in response to non-custodial police questioning can still be used against you if the Miranda warning hasn’t been given because Miranda rights only attach to custodial interrogations.
Police questioning during a routine traffic stop is not usually considered to be an “illegal interrogation.” An illegal interrogation is when the police conduct a custodial interrogation without having first informed the suspect of his or her Miranda rights (the right to remain silent, the right to have an attorney present during the questioning, etc.).
Even though you are “detained” by the police during a routine traffic stop, and not free to go, the detention is brief and the encounter occurs in public. The Supreme Court has ruled that this kind of detention does not amount to a custodial interrogation to which Miranda rights attach.
If you are the holder of a commercial driver’s license (CDL) and are convicted of certain traffic violations while operating a commercial motor vehicle (CMV), or you hold any of these types of licenses: Chauffeur License, Minor Restricted License, Recreational, Farmer & H-Hazardous Materials, you may be subject to more regulations and stiffer penalties which may result in the suspension or revocation of your license. Even if you are not a commercial driver, the consequences of traffic violation convictions can be quite bad. Depending on the severity of the violation, you should consider retaining a traffic violations lawyer who can advise you of your legal rights and represent you in Court.
You should carry your license with you whenever you are operating a motor vehicle. In some states you may be able to avoid a conviction if you bring your license to Court and show that it was valid on the date you were stopped (i.e. it was not expired or suspended).
If the police pull you over on suspicion of drunk driving, the police will typically try to give you not only a field sobriety test, but also a breathalyzer test (to test for your blood-alcohol concentration). Illinois has “implied consent” laws, which mean you are deemed to have already consented to a field sobriety test through the privilege of driving on the roads or obtaining a license. Regardless, you have the right to refuse the field sobriety test. Refusals should be made politely and should reference your need to speak to an attorney.
If you find yourself in the position of being arrested for a drunk driving offense, contact us as soon as possible to determine your best options.
Estate planning is a process to consider alternatives to Probate and to consider and create legally effective arrangements that would meet your specific wishes if something happens to you or those you care about. Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees, and sets up contingency planning to make sure your wishes regarding health care treatment are followed. On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die. On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters, so that if you ever are unable to give the directions yourself, someone you select would do that for you.
A Will and a Trust are similar in the effect that both let you designate exactly how you want your assets and other personal property to be distributed to your friends, family and other loved ones after you die. A Will must be filed in the Probate Court but a Trust does not. A Trust is administered outside of the Probate Court, and can save the family thousands of dollars in legal fees and Court costs.
The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract. If you are unable to manage your own affairs or suffer from some other disability which affects your legal capacity, your estate plan may be effectively challenged by those who assert that you lacked capacity at the time the documents were created, that you were subjected to fraud, coercion or undue influence during the creation and implementation of your plan.
A “no fault” divorce is one where the spouse filing for divorce does not have to prove that the other spouse did something wrong. All states allow divorces regardless of who is at “fault”. To file for a no fault divorce, one spouse must simply state a reason recognized by the state.
At the outset, it is important to understand that “custody” is usually divided into two separate categories – legal custody and physical custody. Often, both parents are granted joint legal custody; meaning that both parents have an equal say in making the day to day decisions related to their children’s health, safety and general welfare. Physical custody simply refers to the allocation of time spent with each parent. This is usually done through the use of some type of parenting plan that is either agreed upon by the parents and submitted to the Court or if the parties can not agree on this, then the Court will listen to arguments from both parents and then make a decision.
In making any decision regarding how much time a child will spend with either parent, or which parent will have primary custody, the Court will always make that determination based upon the “best interests” of the child standard. In using the “best interests” standard, a Court will look carefully at both parents in order to determine if there are any factors that make it better for the child to spend more time with one parent than the other. For example, if the mother has an 80 hour per week job and the father works part-time, that would be an important factor. In addition, any issues that either parent has related to a substance abuse problem, present or past criminal activity or any other type of unstable lifestyle will be carefully evaluated.
Filing for divorce is like initiating any other civil lawsuit – you must first file papers at the Courthouse. Once filed, the papers must then be delivered to your spouse (“served”). The rules associated with what needs to be included in the Complaint and how the Complaint must be “served” on your spouse are complicated and technically specific.
When a person or family has been psychologically or physically injured due to misdeeds or carelessness of other persons or entities, vehicle accidents, falls, intentional acts, or wrongful death, for example, your attorney will render assistance to you in seeking justice and fair compensation for your loss of income, pain and suffering, property damage, uncovered medical expenses, and otherwise.
Usually, an insurance company represents the party having caused your losses. Keep in mind that its object is to compensate you as little as possible. Anything you say to an insurance adjuster could later be used against you, and for that reason, you should make absolutely no statements without your attorney’s advice.
Real Estate Transactions
We suggest you contact an attorney immediately upon both buyer and seller signing the contract. There are many items that can still be negotiated, except the purchase price, even after the contract has been signed. However, there are only a few days after signing to do so.
We provide complete legal services for residential real estate transactions, including short sales, foreclosure defense and commercial leases:
- Negotiating between buyer and seller all the way through closing.
- Reviewing contracts to make sure they best represent your needs.
- Ordering surveys of your property.
- Ordering and reviewing title.
- Preparing all documentation.
- Scheduling closing date, time, and place.
- Handling the extra documentation that goes with buying or selling a condo.
- Placing property into a land trust, a living trust, or both.
If you can’t make it to the closing, or simply wish to avoid the stress of the event, you may sign most closing papers in advance, and for those documents requiring a closing signature, a Power of Attorney may be used. We will walk you through it.
Other groups — such as state, county, and city government entities — will require various payments during the closing process. These may include:
- Title fees.
- State, county, and municipal transfer stamps.
- Cost of surveying (for single-family homes).
- Pest inspection.
- Association fees.
The first step in a short sale generally is to contact your lender after you have received an offer on the property and determine what is required to submit the offer to the lender. You may also want to consult with and/or hire a realtor and a real estate attorney to guide you through the process.
Once you have been in contact with your lender, the lender will review the offer and may approve, reject, or counter the offer. It can take a few weeks or a few months to get an answer from your lender about whether you qualify and to complete the transaction.
You may be able to arrange for a loan modification from your lender, where the interest rate, monthly payment, and other terms of your current loan are adjusted to lower the monthly payment and keep you in your home.
Another possible alternative to a short sale is a deed in lieu of foreclosure. With a deed in lieu of foreclosure, the borrower voluntarily transfers ownership of the property to the lender. When completed, the deed in lieu of foreclosure results in the property belonging to the lender, but you will be relieved of further obligations to the lender.
There are many alternatives to a short sale. You should discuss and weigh each option with one of our experienced attorneys.
A commercial lease is typically one of the largest financial commitments a business makes. The lease is a combination of benefits and burdens. Using an attorney to review the lease can be viewed almost as insurance to make sure there are no hidden pitfalls and that the obligations, risks, and benefits are clearly defined and accurate. Ensuring that signage, exclusivity, common area maintenance expenses, and only your fair share of real estate tax payments are all addressed.
Almost every kind of real estate is considered “like kind” and can be exchanged for any other real estate, including vacant land for apartments, a rental house for a shopping center, an office building for a leasehold interest with 30 years or more remaining, as long as you hold them for investment or business use.
Yes, you can. By simply following the 1031 exchange rules every time you sell one or more properties and buy replacement properties, when you die your estate escapes all the capital gains taxes forever!