Happy Holidays!

Originally published by Staff.

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Judge Dismisses Latest Claims in Tiger King Case Finding First Amendment Protection

Originally published by Peggy Keene.

Court Applies Rogers Test Against Tiger King Trademark Claims

On The Tiger King saga captivated audiences that binged the documentary following Oklahoma zookeeper and social media star, Joe Exotic, as he waged his war against rival Carole Baskin and the movement against keeping big cats captive.  But even after the audience explosion has waned, third party legal wrangling involving the show and Tiger King trademark rights continue.

The Tiger King Trademark Saga

In the latest chapter of litigation involving the Tiger King drama, a judge denied claims of trademark dilution and infringement.  In July 2020, Hollywood Weekly Magazine, LLC (“HWM”) and its founder, Prather Jackson, sued Netflix and affiliates claiming various counts of intellectual property infringement for the use of the phrase “Tiger King” in the Netflix documentary about Joe Exotic and Carole Baskin.  In particular, Plaintiffs specifically argued that they coined the phrase “The Tiger King” in 2013 and the use of such phrase as well as of the HWM magazine name and copyrighted materials within the Netflix documentary caused them harm.

The Rogers Test and First Amendment Rights

In the court ruling, the judge found against Plaintiffs, dismissing the claims against Defendants.  Specifically, the court held that both parties agreed that there was extensive use of the Tiger King trademark in the “Joe Exotic Tiger King” documentary series.  The court applied the Rogers test (Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989)) used for determining whether an expressive work runs afoul of the Lanham Act where “the public interest in avoiding consumer confusion outweighs the public interest in free expression.”  The use of another’s trademark in an expressive work will not violate the Lanham Act unless the use “has no artistic relevance to the underlying work whatsoever, or, if it has some artistic relevance, unless it explicitly misleads consumers as to the source or content of the work.”

The court reasoned that as there has been an explosion in sales of Tiger King merchandise and other related goods and services being used in connection with the mark, the use of the phrase in the artistic works meets the threshold of minimal relevance, a prong of the Rogers test.  Basically, the use of the mark had to only have some relevance to the documentary series to satisfy the artistic relevance prong – with a relevance of merely “above zero.”

Not Misleading if Mere Use

The court also dismissed Plaintiffs’ claims of explicitly misleading/sponsorship.  Plaintiffs argued that the use of the marks in the documentary were misleading to consumers and making the public believe Plaintiffs were somehow sponsoring the documentary work. The court held that Plaintiffs were unable to show anything to demonstrate an explicit misrepresentation or misleading claim by Netflix.  As such, the court held that the statements at issue amounted to “mere use.”

Key Takeaways Regarding the Latest Tiger King IP Infringement Case

The HWM and Jackson claims against Netflix for intellectual property infringement from use of “Tiger King” and other marks and copyrights were not successful due to:

• dismissal of trademark dilution and infringement claims;

• application of the Rogers test; and

• a finding the documentary use of the Tiger King mark is protected by the First Amendment.

Related Story: Even the Tiger King Has to Answer to the Law

For more information on Trademark Litigation, see our Intellectual Property Litigation Services and Industry Focused Legal Solutions pages.

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Avoiding a Will Contest

Originally published by Lesley Hempfling.

Even the most harmonious families are susceptible to arguments over the contents of the Will when a loved one dies.  While sometimes there is no way around

The post Avoiding a Will Contest appeared first on The Legacy Editor – Lesley Hempfling.

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Texas Supreme Court Deems Continuous Development Clause Ambiguous

Originally published by Charles Sartain.

Co-author Skyler Stuckey

In Endeavor Energy Resources, L.P. v. Energen Resources Corp. et al. the Supreme Court of Texas construed a continuous development clause in an oil and gas lease covering 11,300 acres in Howard County. After the primary term, lessee Endeavor could retain acreage by drilling a new well every 150 days. The clause gave Endeavor “ … the right to accumulate unused days in any 150-day term during the continuous development program in order to extend the next allowed 150-day term between the completion of one well and the driling of a subsequent well.

After the primary term, Endeavor drilled 12 wells that extended the lease. Endeavor began drilling a 13th well 320 days after completing the preceding well. In the ensuing period Energen top-leased the supposedly non-retained parcels. Litigation ensued.

The dispute focused on how to calculate the number of “unused days”. Endeavor argued that it could carry forward unused days across multiple 150-day terms.  Energen argued that unused days in any given 150-day term could be carried forward only once, to the next term.

The lower courts sided with Energen. The Supreme Court reversed, finding that both parties’ reading of the provision was reasonable, rendering it ambiguous. The parties agreed that the accumulation provision was a special limitation, and the Court analyzed it accordingly. When all means of interpreting a lease leave it equally susceptible to multiple reasonable readings, it will be resolved against the imposition of a special limitation.  Thus, the Court rendered judgment for Endeavor on title to the undrilled parcels.

Analysis by the Court

Energen argued that Endeavor was required to begin drilling within 186 days after completion of its 12^th well (150 days + 36 unused days from the prior term).

Endeavor argued it had accumulated 377 days across multiple 150-day terms in which to drill its 13^th well, because many earlier wells had been drilled ahead of schedule.

In discerning the meaning of the accumulation provision the Court noted several guiding principles. See the attached longer summary of the opinion for these basic rules of contract construction.

Energen’s position was that “150-day term” meant that every term (whether “extended” or not) is 150 days for purposes of calculating unused days. The lessee may not “accumulate unused days” from a term after its 150^th day, nor may a lessee use “unused days” to extend anything other than a 150-day term.

The Court turned to the argument the lower courts found persuasive: the provision distinctly refers to “any … term” in the singular rather than plural with regard to the term in which days can be accumulated. This, said Energen, meant that unused days can only come from the one term immediately preceding the “next” term to be extended.  Endeavor countered that focusing on the “next” term begs the question of whether unused days carried over from one term become a substantive part of the latter term. If they do, there will always be a next term for them to carry over into.

The parties addressed the word “accumulate.” Endeavor argued that it indicated a right to stack up, gather, or compile days over multiple periods. The Court concluded that “accumulate” can also be used to describe general increases, regardless of their temporal nature, and outsized importance cannot be placed on a generally-used term.

With textual analysis producing a draw, the Court turned to the business objectives of the parties.  See, again, the attached summary for their points.  Neither side carried the day.  As an aside, the Court noted that the mere existence of model forms or templates the parties could have used should have any bearing on a contract interpretation.

Having exhausted the principles of textual construction and economic intent, the Court found both parties’ arguments to be reasonable, rendering the clause ambiguous as a matter of law.  So it’s back to the trial court for further proceedings, except for the judgment confirming Endeavor’s tite.

Advice to scriveners

The Court closed with a warning to those who draft contracts: “Because ‘[a]mbiguities [in continuous-development clauses] are frequent in concerning the times at which wells must be commenced,” “[g]reat care should be exercised in drafting to avoid question of whether the lessee has complied. Had greater care been taken in the drafting of this continuous-development clause, this litigation could have been avoided.”

Santa is gone from every place except our blog. This quaint carol is presented by our colleague, energy lawyer/musical anarchist Ethan Wood.

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Lawyers: In 2021 Can You Reinvent Yourself?

Originally published by Cordell Parvin.

Over the Christmas weekend I watched The Bee Gees documentary on HBO Max.

There were at least three things that amazed me.

1. Their first hits I remember came out more than 50 years ago.
2. They reinvented themselves at least three times. The last time was when disco music became toxic and the “disco sucks” movement took hold of Mid-America, with a night of bedlam at Comiskey Park in Chicago. They received death threats.
3. They wrote well-known songs recorded by other artists. See: 8 songs you didn’t know were written by Barry Gibb and the Bee Gees

As you may know, John Travolta owes a great deal of his success to The Bee Gees.

What does that have to do with law? If your career lasts as long as mine, you’ll most likely have to reinvent yourself.

Reinventing yourself means taking risks. I know I did it more than once. After leaving the United States Air Force and starting work in my first law firm, I was a “commercial” litigator and also handled insurance defense cases. I knew as early as two years later that the legal market was changing and I had to change with it or rot on the vine. I purposely left a practice I had established myself in to a practice I had to both learn and development.

As I may have shared, I am writing my third novel. I started writing in 2019 and the story started in 2019. I originally planned for the trial to take place in 2020. In fact, I picked a Monday in March for the trial.

Guess what? I am not aware of any jury trials taking place in Dallas after March 12, 2020. I believe trials are now being scheduled for January, 2021 and beyond. My protagonist, Gabriela Sanchez may have to reinvent herself. Will the jury wear masks, be seated six-feet apart and have plexiglas protecting them. How about witnesses? Will witnesses be wearing masks? Will they be protected by plexiglas? Isn’t it likely judges and juries will be less patient than before?

What will change in your law practice in 2021? Will you have to reinvent yourself.

If you want to learn more about reinventing yourself in difficult times, see: 5 Strategies for Reinventing Your Career in Uncertain Times

The post Lawyers: In 2021 Can You Reinvent Yourself? appeared first on Cordell Parvin Blog.

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In the Matter of James and Simona Quezada v. Internal Revenue Service – The Fifth Circuit and the Discharge of Taxes in Bankruptcy

Originally published by Gregory Mitchell.

The dischargeability of and the ability to collect taxes by the IRS in a consumer bankruptcy case often turn on the issue of whether and when the taxpayer filed the relevant returns, thereby determining when the statute of limitations on assessment began to run.  In this case, the IRS assessed the taxpayer, James Quezada, in 2014 for tax deficiencies arising for tax years 2005-2008.  Quezada filed for bankruptcy in 2016.  The IRS filed a claim for the alleged 2005-2008 tax deficiency.  Over the taxpayer’s objection, the Bankruptcy Court held that the limitations period never began to run because Quezada never filed “the return,” and the District Court affirmed.  As a result, the taxes were deemed not dischargeable, and the IRS’s claim was upheld.

The taxpayer appealed to the Fifth Circuit, arguing that although he did not file the precise form that the IRS required, that he provided all of the information to the IRS that was necessary in order for the IRS to determine the amount of tax due.  Based on that, Quezada urged that the statute of limitations on assessment expired long before the assessment was made, and therefore the tax was dischargeable and assessment was precluded by the statute of limitations.

Treasury regulations require business owners, like Quezada, to report payments made  for “salaries, wages, commissions, fees, and other forms of compensation for services rendered aggregating $600 or more.”  26 C.F.R. § 1.6041-1(a)(1)(i)(A).  A Form 1099 is required for each person paid $600 or more.

A Form 1099 shows the name and address of the payee and how much he was paid.  Each payee for whom a payor files a Form 1099 must provide a Taxpayer Identification Number” (TIN).  See 26 U.S.C. § 3406(a).  The payor must list the payee’s TIN on the Form 1099.  § 301.6109-1(c).  If the payee fails to furnish his TIN to the payor, the payor is required to withhold a flat rate for all payments to the payee and send the withholdings to the IRS.  26 U.S.C. § 3406(a).  This is called “backup withholding.”  The flat rate the payor withholds acts as a “backup” in case the payee fails to pay taxes on the underlying payments.

This case involves amounts Quezada failed to withhold as backup withholding for payments made to subcontractors for which he did not obtain TINs.  Under treasury regulations, a person required to backup withhold must file a Form 945.  See 26 C.F.R. § 31.6011(a)-4(b).  The Form 945 reflects, among other things, the amount that a person has backup withheld over a given tax year.  Because Quezada was required to backup withhold, he should have filed Forms 945 for the relevant tax years but failed to do so.  This failure led to an investigation by the IRS.  Following the investigation, in 2014, the IRS assessed $1.2 million against Quezada for amounts he failed to backup withhold from 2005-2008, plus penalties and interest.  This assessment came more than three years after Quezada filed Forms 1040 and 1099 for 2008, the last tax year in question.

After Quezada filed for bankruptcy in 2016, the IRS filed its proof of claim for the missing backup withholding.  Quezada, in turn, filed an adversary proceeding to determine his tax liability.  In that proceeding, Quezada contended that the assessment was barred by the three-year limitations period.  Quezada urged that his Forms 1040 and 1099 combined to constitute “the return” that triggered the limitations period.  The IRS argued that, because Form 945 was never filed, the limitations period never began to run.  The Bankruptcy Court agreed with the IRS and entered judgment for the IRS, holding that the assessed taxes were valid, allowed, and non-dischargeable.  The district court affirmed.

On appeal to the Fifth Circuit Court of Appeals, the IRS invoked the decision in Comm’r v. Lane-Wells, Co. 321 U.S. 219 (1944), urging the existence of a per se rule requiring the taxpayer to file the return designated for the tax liability at issue.  That form is Form 945, and because that was not filed, according to the IRS, the analysis should end there.  The Fifth Circuit disagreed.  In analyzing the Supreme Court’s decision in Lane-Wells, the Fifth Circuit noted that, in holding for the IRS in Lane-Wells, the Supreme Court emphasized that “the returns did not show the facts on which liability would be predicated.”  The Fifth Circuit, therefore, rejected the notion that a form other than the one prescribed by treasury regulations could not be found to constitute “the return.”  The Court therefore held that “the return” is filed, and the limitations clock begins to tick, “when a taxpayer files a return that contains data sufficient (1) to show that the taxpayer is liable for the tax at issue and (2) to calculate the extent of that liability.”

Turning to the case at bar, the 5^th Circuit analyzed whether the 1099s and 1040 that were filed were sufficient to show “the facts on which liability would be predicated.”  They ultimately concluded that they were.  The IRS could determine that Quezada was liable for backup withholding taxes by looking to the face of the Forms 1099; if a particular form lacked a TIN, then Quezada was liable for backup withholding taxes applied to the entire amount he paid to that subcontractor.  Further, the amount Quezada should have backup withheld could be determined by multiplying the statutory flat rate for backup withholding by the amount Quezada paid the subcontractor, which was also reflected on the Forms 1099.  The Court noted that it was this information that the IRS did, in fact, use to calculate the amount of backup withholding to assess against Quezada.

Accordingly, because Quezada’s Forms 1040 and 1099 contained data sufficient (1) to show that Quezada was liable for backup withholding; and (2) to calculate the extent of Quezada’s backup withholding liability, those forms were found to constitute “the return” that triggers the IRS’s 3-year assessment limitations period.  Because the IRS assessed Quezada’s backup withholding liabilities more than three years after Quezada filed Forms 1040 and 1099 for the relevant tax years, the assessment was barred by the limitations period.

The post In the Matter of James and Simona Quezada v. Internal Revenue Service – The Fifth Circuit and the Discharge of Taxes in Bankruptcy appeared first on Freeman Law.

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Fifth Circuit Denies Rehearing En Banc in Controversial Client Identity Privilege Case (12/23/20)

Originally published by Jack Townsend.

I have previously reported on the Fifth Circuit’s rejection of the client-identity privilege (a subset of the attorney-client privilege) in Fifth Circuit Rejects Attorney-Client Identity Privilege for Law Firm Documents (Federal Tax Crimes Blog 4/26/20), here.   See Taylor Lohmeyer Law Firm P.L.L.C. v. United States, 957 F.3d 505 (5th Cir. 2020), here.

On December 4, 2020, the Fifth Circuit denied rehearing en banc.  The vote was 9 to 8.  Six of the judges dissenting to denial of rehearing en banc filed a dissenting opinion.  The denial and dissenting opinion are here.

The panel opinion was controversial.  Amicus briefs on petition rehearing en banc were filed by the National Association of Criminal Defense Lawyers, here, and by the American College of Tax Counsel, here.

I am not sure what the dissenting opinion really adds to the panel decision other than suggesting a possible interpretation of Fifth Circuit law unaffected by the original panel opinion.  Perhaps it will offer some basis for continuing the fight on remand and in other cases.  Perhaps not.

An excerpt from the dissenting opinion (footnote omitted):

 

The amici raised important concerns about how to interpret the opinion in this case. However, the opinion assures us, in its citations to Jones and Reyes-Requena II, that it does not diverge from our settled precedent. Taylor Lohmeyer Law Firm P.L.L.C. v. United States, 957 F.3d 505, 510–11 (5th Cir. 2020). I take the opinion at its word. Whenever disclosing a client’s identity would reveal the confidential purpose for which the client consulted the attorney, attorney-client privilege applies. This protection may obtain even if the government does not know the specific, substantive legal advice that was provided to the client.

In the district court, the enforcement order is currently stayed and the case has been administratively closed to facilitate our review of the enforcement order. Once our mandate issues, it may be that the case is reopened and the stay lifted. If so, the May 15, 2019 enforcement order provides that the Lohmeyer law firm will have the opportunity to produce a privilege log, asserting privilege on particular responsive documents. If the law firm does so, the district court may choose then to conduct an in camera review of those documents. I am confident that any such review will be guided by the following: “[i]f the disclosure of the client’s identity will also reveal the confidential purpose for which he consulted an attorney, we protect both the confidential communication and the client’s identity as privileged.” Lohmeyer, 957 F.3d at 511 (quoting Reyes-Requena II, 926 F.2d at 1431).

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Texas Court Finds No Duress in Mediated Settlement Agreement

Originally published by Robert Epstein.

What is a Mediated Settlement Agreement?

A mediated settlement agreement (“MSA”) in a Texas divorce is binding if it meets certain requirements.  It must state that it is not subject to revocation in bold letters, capital letters or underlined text.  It must also be signed by each party and the party’s attorney, if present. Tex. Fam. Code Ann. § 6.602.  Some Texas courts have held that an MSA may be unenforceable if it is obtained by fraud, duress or coercion.

A husband recently challenged an MSA, partly on the grounds that he allegedly signed it under duress.

The parties had been married since 1981.  Some of the property acquired during the marriage was held by a limited partnership in which the parties owned a 95% interest.  In August 2017, the husband was arrested after the wife reported he had threatened her with a firearm.  The wife filed for divorce the very next day.

 

Husband Claims He Signed Mediated Settlement Agreement Under Duress

The parties went to mediation and signed an MSA. In the MSA, the husband agreed to transfer property, including some owned by the limited partnership, to the wife.  Notably, the MSA stated that the parties “entered into the settlement freely and without duress…”

Thereafter, the wife requested the trial court to enter judgment along the lines of the MSA, but the husband asked the court to refer them to arbitration.  The parties arbitrated their disputes and an arbitrator signed the proposed divorce decree.  The wife filed the decree and asked the court to enter judgment once again.

Because of his earlier arrest, the husband, who was a physician, lost the ability to work at several hospitals, which he claimed threatened his ability to make a living.  At the hearing on the wife’s motion to enter judgment, he argued he had to sign the MSA due to the duress arising out of his criminal charges.

The husband asked the court to set aside the MSA and hold a hearing.  He alleged the wife falsely accused him of domestic violence.  He also alleged she used the threat of criminal prosecution to gain advantage in the divorce and at mediation.  He claimed she was responsible for his loss of hospital privileges.  He also alleged she had reported his criminal charges to the Texas Medical Board.  He claimed he felt he did not have a choice when he signed the MSA.

Worth noting, the husband conceded that, at the mediation, he did not communicate with anyone other than his own attorneys and the mediator.

The wife testified she had called 911 on husband because she was afraid.  She said that, contrary to the husband’s allegations, she had not notified the Texas Medical Board or any hospitals about anything that would affect the husband’s credentials, nor had she asked anyone else to do so.

After hearing the evidence, the trial court found that husband had not been coerced into signing the MSA, granted the wife’s motion, and signed the final divorce decree. The trial court denied the husband’s motion for a new trial, and he appealed.

Court of Appeals Affirms – Finding No Duress

The husband argued the MSA was unenforceable because he signed it under duress.  A threat of criminal prosecution to get someone to sign a contract may raise the issue of duress.  In this case, the criminal prosecution began nearly a year before the mediation occurred.  Furthermore, the record showed that the husband wanted the wife to drop the charges and he raised that issue in the negotiations.  He proposed a letter for her to sign, but it was revised during the mediation.  He said he would like it to be signed so his “criminal charges will go away.” He did not have any direct contact with the wife or her attorney during the mediation.

Duress is determined based on the actions of the accused party and must be based on an imminent threat.  There was no evidence that contradicted the wife’s testimony she had not taken an active role in the investigations beyond calling 911 and making the initial report.  She did not make any imminent threat to get the husband to sign the MSA.  Furthermore, after she reported the incident, the criminal prosecution was in the control of the District Attorney’s Office, not her.

The appeals court found the trial court have reasonably concluded the husband had required the MSA to address the criminal case.  The appeals court found no abuse of discretion in the trial court’s refusal to set aside the MSA when it met the statutory requirements.

The husband also argued the MSA was based on a mutual mistake that he could convey the property owned by the limited partnership. A mutual mistake exists when the document does not reflect the common intent of the parties.  The appeals court noted that there was no evidence showing the agreement did not reflect the intent of the parties.  Furthermore, there was no evidence that the purported mistake was mutual.

Before mediation, the parties’ attorneys had communicated about whether the husband had the authority to convey the property. The husband had not raised the issue of a lack of authority during the mediation or prior to signing the MSA.  The partnership agreement had not been made part of the record.  Without evidence of the terms of the partnership agreement, the husband could not show that complying with the MSA would violate the partnership agreement or that the property transfers would be inconsistent with the partnership agreement.  The appeals court further suggested the husband may have misrepresented his authority, and noted that he could not benefit from that misrepresentation by calling it a mistake.

Accordingly, the appeals court affirmed the trial court’s judgment.

Make Sure a Strong Attorney Represents You at Mediation

An MSA that meets the statutory requirements is generally going to be binding.  Thus, it is best to be represented at the mediation by strong Texas divorce attorneys who can advise and protect you and your rights. Call us at (214) 692-8200 to schedule a consultation with McClure Law Group.

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Top 5 Types of Trusts

Originally published by thompsonlawtx.com.

Once regarded as an estate planning tool for only the ultra-rich, trusts have gained popularity among Texans of varied social and economic standing.

There are many different types of trusts, each providing various advantages. Texas estate planning attorneys regularly help clients of all circumstances determine which type of trust will best meet their specific objectives.

Generally, the primary concerns of those seeking to establish a trust include:

1. Probate avoidance
2. Maximizing tax exemptions
3. Managing asset distribution

In response, experienced estate planning attorneys list the top 5 types of Texas trusts.

Top 5 Common Types of Texas Trusts

Of the many different trusts, a handful seem most commonly preferred, each of which offers one or more of the benefits mentioned above.

1. Living Trusts are established and funded by the grantor while the grantor is living. Assets are transferred into the trust by the grantor and ultimately disbursed from the trust to heirs of the estate after the grantor dies. Living trusts supersede any wills, and assets held in the trust do not pass through probate.
2. Revocable Trusts may be changed or fully revoked at any time by the grantor. Upon the grantor’s death, a named trustee oversees the distribution of assets from the trust to the beneficiaries. Unless the grantor empowers a named designee to amend the terms of the trust, provisions of the trust may not be modified after the grantor’s death. Assets held in revocable trusts are not subject probate, yet they are included in the grantor’s taxable estate.
3. Irrevocable Trusts allow an exclusion of assets held in trust from the grantor’s gross taxable estate. As such, assets placed into the trust cannot be removed, and changes to the terms and beneficiaries of an irrevocable trust cannot be made. Irrevocable trusts provide extremely favorable tax protections for assets of significant value, such as life insurance policies, personal residences, and annuities.
4. Crummey Trusts are structured to allow gifts of assets to children over time, while excluding those “current” gifts from the grantor’s taxable estate. Further, the transfer of “gifts” into the trust allows the grantor to gift assets while avoiding potential gift tax penalties. Under a Crummey trust, the gift recipient has the right to claim the gift within 30 days, while it is in their interest not to. Unclaimed gifts roll into the trust, and are later distributed according to the terms of the trust. As the gift rolls into the trust, the grantor is incentivized to continue making future gifts.
5. Educational Trusts are often used by parents and grandparents who wish to provide money toward the education of their children or grandchildren. Stipulations regarding the distribution of funds are built into the trust, ensuring that the money is used for its intended purpose.

Contact a Texas Estate Planning Attorney About a Trust That is Right for You

There are many factors to consider when incorporating a trust into your estate plan. The type of trust you choose will depend heavily on your financial situation and family dynamics.

You need a knowledgeable trust attorney to explain the available options based on your particular circumstances and goals.

We encourage you to contact our office to speak with an experienced Texas estate planning attorney who will customize a plan to protect your assets for future generations. Reach out to us today for more information.

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What Does a Forensic Accountant Do During Divorce Proceedings?

Originally published by Family and Criminal Law Blog.

There are so many issues at play in a divorce. Things can turn to a mess at many different levels. One such level involves finances. The financial aspects of divorce can be emotionally charged and messy. This can lead people to do all sorts of things by justifying that they are protecting what’s theirs and intentionally denying someone else his or her fair share. Because people can go to such lengths as hiding assets, funneling income through business to make it look like he or she does not make much money, or finding other ways to devalue property and other assets, forensic accountants are often brought in to help clarify financial matters in divorce so that everyone involved is given a clear picture of a couple’s financial landscape.

What Does a Forensic Accountant Do During Divorce Proceedings?

Unraveling the intertwined financial life of a married couple can be difficult enough when all parties are knowledgeable about the financial matters that impact them and everyone is being honest and cooperative. Throw in a less than candid spouse and you can have some real problems in terms of sorting through finances in a divorce This is where a forensic accountant comes in. A forensic accountant sifts through a couple’s financial information to get an accurate picture of all assets and liabilities involved. This helps to ensure that there is a proper distribution of assets and liabilities in the divorce.

A forensic accountant will sift through extensive financial records, including:

• Tax returns
• Credit card statements
• Bank accounts and other financial statements
• Stock certificates
• Investment account statements
• Property deeds

In essence, a forensic accountant will review any records or documents relevant to a couple’s financial status. This can extend, in turn, to any business holdings of either spouse. In fact, forensic accountants are often brought in to evaluate the value of a business.

A forensic accountant will help establish the income of each party as well as the total value of jointly held and marital property as well as separate property. Furthermore, a forensic accountant can check to see if both spouses are accurately reporting their income. Part of the review process will involve the forensic accountant running an audit on business records to check for things like whether a spouse is running personal expenses through the business to try and make it look like the business is not making that much money.

When going through all of this financial information, a forensic accountant will look for any inconsistencies, irregularities, and red flags. The financial impacts divorce can have on the parties involved is significant and it can be critically important that each spouse’s financial situation is accurately revealed so that things like division of the marital debt and property, child support, and spousal support are accurately calculated.

Criminal Defense Attorneys

A forensic accountant can be an invaluable part of the divorce process. For more information on uncovering hidden assets and ways to get an accurate picture of your finances with a divorce pending, talk to the team at Navarrete & Schwartz about your options. We are proud to serve the residents of Midland, Texas. Contact us today.

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State and Local Tax Nexus

Originally published by George Rendziperis.

This article is the first of a three-part series regarding the State and Local Tax consequences of doing business in multiple states.  Part 1 will discuss Nexus, Part 2 will discuss Voluntary Disclosures, and Part 3 will discuss the Audit Process.

What is Nexus?  In order for a state to impose an income, franchise, or gross receipts tax on a taxpayer or require a taxpayer to collect and remit sales and use taxes, the taxpayer must have nexus with the state.  Nexus is some type of connection with the state.   Such connection could be a physical presence in the state, an economic presence in the state (i.e., taking advantage of the market in the state (such as an intangible asset)) or some type of factor presence in the state (certain dollar amount of sales into a state).

Are there different nexus standards for Income, Franchise and Gross Receipts taxes and Sales and Use taxes?  Yes.

Income, Franchise or Gross Receipts Tax Nexus Standards

Generally, to create nexus with a state for Income, Franchise, or Gross Receipts tax purposes, there must be some connection with the state.  That connection can be a physical presence, economic presence, factor presence or just a registration with the Secretary of State of qualify to do business in the state.

A physical presence is having employees in the state (permanently or visiting customers), or inventory or assets in the state.  An economic presence in the state could be the license of a trademark in the state, having a loan to a customer in the state, or anything else that may be considered taking advantage of the state’s market.  Factor presence nexus is having a certain level of sales in the state.  For example, if you have more than $500,000 of sales into California, then under California law, nexus is created with California—even though there is no physical presence in the state.

For Franchise tax nexus, registering with a state may create a filing obligation and may give rise to a minimum tax, even though you may not be doing business in the state.   For example, if you register with the California Secretary of State to do business in California, it will create franchise tax nexus and you will be required to pay the minimum tax of $800, even though you may not actually be doing business in the state or have customers in the state.

In summary, generally, the standard for Income, Franchise or Gross Receipts tax nexus is either a physical presence in the state, an economic presence in the state, or a factor presence in a state.

Sales and Use Tax Nexus Standards

Generally, prior to June of 2018 (before the Wayfair decision), a taxpayer was required to have a physical presence in the state before a state could impose a sales and use tax collection and remittance requirement upon a taxpayer.  But the Supreme Court of the United States’ decision in Wayfair changed that.  In Wayfair, the court upheld a South Dakota law deeming a taxpayer with more than $100,000 of sales into the state or 200 transactions in the state to have nexus with South Dakota and requiring the taxpayer to collect and remit sales and use taxes to the state.  This lowered the bar from a physical presence to an economic presence.

As a result of the Wayfair decision, all states that impose a sales and use tax, except Florida and Missouri, have adopted an economic nexus standard like the South Dakota law.  Some states have not adopted the 200-transaction test and some states have a $500,000 or $250,000 threshold, rather than the $100,000 threshold.  Note that Alaska, Delaware, New Hampshire, Oregon and Montana do not impose sales and use taxes.

In conclusion, generally, for sales and use tax purposes, nexus is established with a state if a taxpayer has a physical presence in the state or if it has met the economic standard of such state.

Why is nexus important?   If a taxpayer has nexus with a state, then the taxpayer has a tax-filing obligation and may owe state income, franchise or gross receipts tax, or it must collect and remit sales and use taxes on the sale of taxable goods or services.

The Covid-19 pandemic has impacted states economically, as state tax collections have declined, and state spending has increased.  States will be aggressive in enforcing their state tax laws, as states try to cope with budgetary deficits.  If a taxpayer is not compliant with state tax laws, then the taxpayer may be subject to tax, interest and penalties, which may be costly to the taxpayer in the future.  Such obligation may, for example, have an impact on selling a business or personal liability for the owner or officers of the company.

Taxpayers must be proactive as states get aggressive.  A taxpayer must keep track of its employees if they are traveling to states to create a market for the taxpayer in the state or if they are working remotely (due to company policy or the Covid-19 pandemic) in a state in which the company does not do business in the state.  Tax departments must work with its human resource departments to keep track of their employees’ locations to determine nexus and any new state tax obligations.

In conclusion, taxpayers must (we recommend on a quarterly basis) monitor where it has employees either working remotely or traveling into states to create a market for the taxpayer, and monitor their sales into a state to determine if it has triggered any nexus laws, and thus would be required to file an income, franchise or gross receipts tax return or collect and remit sales and use taxes on taxable sales of goods or services, or collect exemption certificates from customers in those states.

 

Freeman Law can help taxpayers navigate state tax laws.  We will provide value driven services and provide practical solutions to complex issues.  If you have any questions, please contact George Rendziperis at 512-663-0132 or george@freemanlaw.com; or Edward Corts at Ecorts@freemalaw.com.

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Eggnog Legalese: What are You Drinking?

Originally published by Sabrina Davis.

Image by Jill Wellington from Pixabay

Tomorrow, December 24, is National Eggnog Day. While the origins of both the drink and its name are unclear, eggnog enjoys some popularity in the United States during the fall and winter seasons—although, some love it and some love to hate it.

In the United States, the Food and Drug Administration (FDA) has issued a regulation and guidance on the composition of eggnog. For instance, 21 C.F.R. §131.170 stipulates that eggnog contains specified: (1) dairy ingredients, (2) egg yolk-containing ingredients, and (3) nutritive carbohydrate sweeteners. The guidance further states that: “Eggnog is a milk product consisting of a mixture of milk or milk products of at least 6.0 percent butterfat, at least 1.0 percent egg yolk solids, sweetener, and flavoring. Emulsifier and not over 0.5 percent stabilizer may be added.” It also differentiates “eggnog” from “eggnog flavored milk,” which has lower allowances for butterfat and the other ingredients.

Interestingly, 21 C.F.R. §131.170(e)(4) only allows for “[c]olor additives that do not impart a color simulating that of egg yolk, milkfat, or butterfat.” In addition, the FDA guidance indicates that adulterated foods are not in compliance with the Federal Food, Drug, and Cosmetic Act and plainly states that: “The addition of yellow color may serve to adulterate the products under 403(b) of the Act since the use of such color would make the article appear to contain more egg yolk than it actually contains.” [For a lively take on the blatant occurrence of this “adulteration,” see Patrick Di Justo’s article here.]

In related news, Texas and some other states prohibit the sale of alcohol on Christmas day, so if you like some spike in your eggnog, plan ahead accordingly.

Further Reading

• Eggnog, the Way the Supreme Court Made It – Law.com

• A Brief History of Eggnog – Mental Floss

• Eggnog – Wikipedia

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Asset Protection Planning: Steps You Should Consider Now

Originally published by Robert Kraft.

There are, to be blunt, two types of assets you’ll want to protect: assets that you want access to when you’re alive, and assets you want others to be able to access after you die.

No matter which types of assets you’re trying to protect, we live in a litigious society, and it’s to your advantage to protect your assets. Asset protection is a multidisciplinary affair: knowing about real estate law, tax law, business law, insurance, accounting, financial planning, and more, will be to your advantage.

What we’ll offer here, then, is just a brief glimpse into the multifaceted world of asset protection in Texas. We’ll cover why you should consider asset protection right now, even if bankruptcy or litigation are the furthest things from your mind. After that, we’ll cover four asset protection fields: homestead protection, forming LLCs, life insurance, and liability insurance.

Why you should consider asset protection planning now

First, the big question – why should you think about asset protection when, to the best of your knowledge, your assets don’t need protecting?

We know you’ve heard horror stories – we all have. Liability suits, painful divorces – we all like to think that these are things that happen to other people, but the sad truth is, they can happen to anyone.

What’s more, if you look at a year like 2020, you see that things can go very badly, very quickly. How many people have had to file for bankruptcy in 2020? How many of those people lost their life savings?

Risk management is all about anticipating worst-case scenarios long before they actually arise. When it comes to asset protection, there are many moves you can make when things are running smoothly that you can’t make when creditors are knocking at your door. Having a plan and systems in place to protect your assets before things go awry is the best way of keeping your money.

Look into homestead protection

There are a lot of reasons to be happy about living in Texas – when it comes to asset protection, Texas homestead law should leave you with a mile-wide smile.

The basics are simple: barring a few exceptions (which we’ll cover), your home is protected from seizure. These protections apply to:

• Homes of 10 or fewer acres within non-rural areas (cities, towns, etc.)
• Homes of 100 or fewer acres in rural areas
• Homes of 200 or fewer acres in rural areas if occupied by a family

Your home being immune to claims by creditors is a massive boon. What’s more, Texas law protects certain assets deemed essential to a homestead: up to $30,000 for individuals, and up to $60,000 for families. These assets include:

• Home furnishings
• Farming equipment
• Jewelry (not exceeding 25% of the 30K or 60K limit)
• Two firearms

That’s not nearly a complete list, either – a lot of things can fall under homestead protection. Your first step in asset protection? Evaluate what parts of your homestead qualify for homestead protection. You might also consider investing more money into a homestead – real estate can be a powerful investment vehicle, and Texas law helps protect your investment. Note that these laws only apply to your primary homestead, and can’t be used for properties that are exclusively for investment purposes.

The exceptions to homestead protection include asset division as a result of divorce and asset seizure as a result of non-payment of taxes. Unsurprisingly, asset seizure as a result of non-payment of your mortgage can also bypass homestead protection.

Form an LLC

Limited liability corporations (LLCs) don’t get their name by chance – they’re used to limit your personal liability, and thus, grant some measure of protection to your assets.

There are a couple of ways you might consider using an LLC in order to protect your assets. The first is if you’re currently running a business as a sole proprietorship – while this can make things easier (less paperwork and a more informal business environment), it means that you’ll be solely liable for the actions of your company. In other words, if your business gets sued, you’re getting sued. LLCs can help you prevent this.

An LLC can also be used if you’ve got a number of rental properties – while most people tend to treat rental properties in an informal capacity, incorporating can help you protect your assets from liability suits brought on by tenants (or others).

There’s not enough space in this article to delve into the various ways you can construct LLCs and subsidiaries to protect your assets – knowledge about how to use corporate vehicles to protect your assets is one thing you should definitely focus on when hiring a lawyer.

Consider insurance

There are two types of insurance you might want to consider for the purposes of asset protection: life and liability.

Life insurance is an excellent way of preserving your estate – Texas has incredibly strong laws surrounding life insurance. With very few exceptions (including, but not limited to, child support or premiums paid explicitly to avoid creditors), any amount of life insurance in Texas is completely protected from the creditors of the insured and the named beneficiary.

You probably already have liability insurance – it protects you in case you’re likely to be found liable for property or personal damage. While most liability insurance will cover you for hundreds of thousands (if not millions) of dollars, you might want insurance that covers you for tens of millions. Check your liability limits, and determine whether or not they’re sufficient enough to protect your assets.

Plan with experts

These are only a few of the many different steps you can take and strategies to consider for asset protection. Everyone’s situation is different, and the best way you can protect your assets is by creating a plan with professionals. Sit down with experts in financial planning, insurance, elder law, bankruptcy, and other related disciplines to develop a holistic asset protection strategy.

Author information: Catherine Holland is a writer based in Canada. She writes articles with a focus on law and business for a variety of companies. Some of her favourite pieces can be found on Matt Gould’s website.

The post Asset Protection Planning: Steps You Should Consider Now first appeared on Kraft Elder Law.

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Fears Arise as EU’s Electronic Communications Code Nears Close to Enactment

Originally published by Peggy Keene.

The EECC Directive is EU’s Latest Regulation to Promote and Enhance Privacy Protections in Electronic Communications

As December winds down, the European Union’s Electronic Communication Code (“EECC”) is close to final adoption as member states of the European Union (“EU”) must ensure that their current regulations are in accordance with the EECC by the end of 2020.  The overarching objectives of the EECC directive are aimed at promoting high-capacity networks, efficient infrastructure-based competition, development of internal markets across the EU, and the protection of consumers.

The EECC Directive is Aimed to Coordinate Various Existing Privacy Laws

The EECC is a new directive for the EU, designed to consolidate and rework existing regulations that oversee communication networks and services of the member states of the EU.  While the EECC has not fully come into effect yet, a variety of preexisting directives and regulations already complement and support the EECC.  Experts in privacy law point out that EU directives such as the e-Privacy Directive, the Roaming Regulation, the Radio Spectrum Decision, and the Telecoms Single Market Regulation all share similar aims and should coordinate with each other nicely.  Currently, the EECC is expected to affect all electronic communications services and networks across the EU.

The EECC Regulation Will Enhance Consumer Privacy Protections

For citizens of the EU member states, there is also increased end-user protection as the EECC is designed to promote and enhance privacy protection for all end-users overall.  Under the new directive, the EECC will consolidate existing protections, realign member states’ security requirements, and unify consumer protection provisions.  Specifically, EU member states cannot make their own provisions any more or less stringent than what is written in the EECC.  Moreover, internet service providers will be required to apply certain EECC consumer protection provisions going forward.  End users will also enjoy more rights when it comes to switching internet services providers, porting phone numbers, utilizing emergency providers, and calling long-distance throughout the EU.

Key Takeaways Regarding Europe’s EECC

By the end of December 2020, EU member states will be required to ensure that their electronic communications services and networks meet the standards of the new EECC directive.  These changes include:

• Enhanced end-user protection;

• Caps on certain service prices; and

• Requiring EU member states to ensure that their own laws are neither more nor less stringent than those of the EECC.

For more information on data privacy, see our Technology and Data Privacy Services and Industry Focused Legal Solutions pages.

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Jamming with Jason – Control any Conversation in a Remote Work Environment

Originally published by tfoxlaw.

Have you had a conversation this last month that just didn’t go the way you expected??? If you’re like most people I’m sure you have. Might have been at work, might have been in your personal life … and I’m guessing with the holidays coming there are some conversations you aren’t looking forward to with […]

The post Jamming with Jason – Control any Conversation in a Remote Work Environment appeared first on Compliance Report.

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The Compliance Life-Kim Yapchai, Make Tomorrow Better (and have some fun)

Originally published by tfoxlaw.

The Compliance Life details the journey to and in the role of a Chief Compliance Officer. How does one come to sit in the CCO chair? What are some of the skills a CCO needs to success navigate the compliance waters in any company? What are some of the top challenges CCOs have faced and […]

The post The Compliance Life-Kim Yapchai, Make Tomorrow Better (and have some fun) appeared first on Compliance Report.

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Compliance and Coronavirus- Dan Goodwin on Thinking Like an Investigator During Covid-19

Originally published by tfoxlaw.

Welcome to the awarding-winning Compliance Podcast Network show, Compliance and Coronavirus. In this episode, I am joined by Dan Goodwin, founder of CYA Consulting, perhaps the best name for a consulting firm ever. Dan is a former in-house fraud investigator who now teaches how to “think like an investigator”. We discuss his ideas applicability to […]

The post Compliance and Coronavirus- Dan Goodwin on Thinking Like an Investigator During Covid-19 appeared first on Compliance Report.

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SCOTUS Asked to Resolve Circuit Split Over U.S. Discovery in Foreign Private Commercial Arbitrations

Originally published by Beth Graham.

The United States Supreme Court has reportedly been asked to resolve a circuit split over whether parties to a foreign commercial arbitration proceeding may seek discovery in the United States under 28 U.S.C. § 1782(a).  Under the law, evidence for use before a “foreign or international tribunal” may be obtained via the U.S. federal district courts.  The nation’s federal courts, however, are currently split regarding whether private commercial arbitration tribunals are included in the definition of “foreign or international tribunal.”  The Second, Fifth, and Seventh Circuit Courts of Appeal have ruled foreign commercial arbitration proceedings do not qualify as a “foreign or international tribunal,” while the Fourth and Sixth Circuits have held participants in such proceedings are permitted to seek discovery under the law.  The issue is currently being considered by the Third and Ninth Circuits as well.

Earlier this month, a petition for a writ of certiorari (20-794) was filed in Servotronics, Inc. v. Rolls-Royce PLC, No. 19-1847 (7th Cir. 2020).  In the case, the Seventh Circuit Court of Appeals denied a request for discovery under Section 1782 despite that only six months prior the Fourth Circuit permitted discovery in a nearly identical sister case, Servotronics, Inc. v. Boeing Co., No. 18-2454 (4th Cir. 2020).  It will be interesting to see whether the Supreme Court of the United States agrees to resolve the current split.

Please check back soon for any updates on this interesting case!

Photo by: John-Mark Smith on Unsplash

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A New COVID-19 Crisis: Domestic Abuse Rises Worldwide

Originally published by Law Office of Bryan Fagan, PLLC Blog.

The most unfortunate part of the coronavirus pandemic has been the deaths associated with people becoming ill. Without a doubt, we have seen some degree of excess death above what we would have come to expect in a “normal” year. it is one thing for us to talk about those deaths as statistics, but it is quite another thing to talk about them if you have a loved one who fell ill and passed away. On behalf of our entire office, if you are a friend or family member of someone who is passed due to the Corona virus our most sincere condolences go out to you and your loved ones. It cannot be easy two here about the deaths associated with the virus especially when you knew one of those people very well.

Obviously, preventing people from getting sick and dying from coronavirus has been our nation’s number one objective since early March. The degree to which we have succeeded at this endeavor has appeared to increase overtime. It seems as though better treatments, more preparation and even a change in the virus itself has contributed to this trend. People are still wisely taking precautions, but my feel is around most places in our area there is not as much trepidation or fear as there was in March or April. It may just be that many of us are just used to the feel of living in a pandemic and are more comfortable going about our lives as normally as possible.

The deaths associated with the virus are one thing but the collateral damage from the virus is something else altogether. If you look at the group of people , for instance, who suffered the most excess deaths of any age group it has been those between the ages of 25 and 44. You can go to the Center for Disease Control and look at their statistics for excess death and see that this group of young people suffered to such a large extent not necessarily because of the virus directly. Rather, this group suffered what is likely going to be deaths by despair disproportionate to their actual risk of serious illness or death due to the virus itself.

Different people will classify a death by despair in a different way, but I would tell you that death by despair are deaths related to mental impairments in problems associated with job loss, fear of becoming ill, loneliness, isolation and things of that nature. These are people who lost employment because of the government mandated lockdowns, lost family members and became despondent at the thought of themselves or someone else they know getting sick or people that just were not able to adapt to the rapid changes in society since the beginning of March. These deaths by despair contributed heavily to the overall numbers of people who can be said to have passed away due to this virus.

Our country in our world was certainly in an unenviable position in the early parts of this year. Government leaders in health officials had to balance the need for society to March on as best possible with the need to protect its citizens especially those who are the most vulnerable to a virus like this. I’m sure if he asked many government leaders, they would change the way they did things from the beginning part of the pandemic until where we are right now. However, they will not be able to go back to change any other actions and the lives that have been lost could be argued as evidence that mistakes were made along the way.

The harm brought about both by pandemic as well as our response to it ventures well beyond the total number of deaths or excess deaths. In the world of Texas family law, our office in other law practices have seen a dramatic increase in the number of divorces that have been filed. This is true not only in Southeast Texas but across the state, across the country and all over the world. These are divorces that may well have occur at some point in the future but the fact that we have been ordered to remain at home for the most part very much speed up the process by which these divorces were filed in my opinion. People came face to face on a daily basis with the problems in their marriage and many were ill equipped to respond positively to them.

As a result, more practices such as ours are busier than normal in representing people who are interested in going through a divorce. The courts in Harris County and throughout Texas are largely running at normal processing speeds unlike the beginning parts of this pandemic. In other words, if you want to get a divorce in Texas you can proceed at full steam ahead with few limitations to your ending a marriage. For some of you this may be necessary but for others you may be able to avoid this fate.

I would like to discuss with you today how domestic violence has become an increasing factor in divorces but to begin with, I would like to discuss how you and your spouse can avoid getting a divorce in the 1st place. If you sense that anger and hostility has become two relevant to your family, then you will especially want to pay close attention to what we discussed today. I would like to think that much of the advice I give to you will be helpful and my moving this sort of hostility in a relationship that can lead to violence and eventually divorce.

Let me begin by telling you that none of what I tell you today or suggest to you in this blog post takes the place of keeping yourself and your family protected in an immediate sense. Yes, I would like to think that the information I provide is helpful on a general level to helping avoid Inter marriage disputes and problems that can lead to violence, abuse or divorce. However, I’m not operating under the assumption that these words can replace a solid plan to keep your family safe if violence occurs in the home. There are many resources out there for you to take advantage of as far as learning about how to keep your family safe from domestic or family violence. You should make yourself aware of those recommendations and put into place practical measures in your own home to help keep everyone safe during these times.

Identify problems in a marriage and becoming intentional about solving them 

One thing that I will tell people quite frequently is that it is certainly possible to wander your way into a divorce. This is true whether or not you are the party who actually files for divorce. Either way, an interest in solving the problems of your marriage can lead to you either having to respond to a divorce petition or can lead to you filing for divorce in the 1st place. Either way, you will find that you will need to become intentional at some point in your life when it comes to the problems in your marriage period you can either become intentional about solving those problems before divorce becomes necessary or you will need to become intentional about solving the problems within a divorce so that your marriage can come to an end sooner rather than later.

Let’s approach this issue proactively and create a plan for you to be intentional about saving your marriage. For most of us, the problems in our marriage can be solved with communication. At this point we have to pause and determine the degree to which you are able to communicate with your spouse. Some of the problems in your marriage can be solved by direct communication beginning right now. Ironically, it is possible to feel alone or isolated even when you are married and even when you spend a great deal of physical time with your spouse. If you all are not connecting with one another emotionally then you can feel distant from spouse even if he or she is in the same room as you.

If this describes your situation then you and your spouse just need to take time out from your day to spend together talking about whatever it is that you are interested in or doing. One thing that marriage counselors will recommend to couples at the beginning of counseling sessions is 2 began to create a household budget or develop projects to complete with your spouse. For instance, if your house has never been on a budget before then you should look into creating one starting now. There will be challenges associated with doing this but in creating a budget you and your spouse are essentially forcing yourselves to work together on a common goal. This can go a long way towards rebuilding a connection that may have been lost overtime.

Another way to rebuild broken bonds of intimacy with your spouse is to think up a common goal or a project that needs to be completed and then work on creating the steps necessary to achieve that goal. These can be goals to simply organize your home or make a simple repair in the house or can relate to your children. For instance, last year my wife and I had a goal to get our daughter reading by time she turned 4 years old. Her birthday is in December, so in August we began working on a lesson book that was showing her the basics of reading. We were both committed to the project and worked with our daughter on a daily basis to achieve this goal. By time her birthday came around in December our little one could read basic children’s story books and she has improved by leaps and bounds throughout this year.

My point is, you and your spouse do not need to be completely comfortable with talking through your feelings and emotions in order to save your marriage from the brink of divorce. On the contrary, all you need to be able to do is show some willingness to connect with him or her through the completion of a project, a household budget or something similar. These are incredibly practical steps that you can take that will benefit your household and can help you all build strong bonds in your marriage. Of course, you can utile eyes your own experiences in your marriage to build bonds whichever way you see fit. However, patient has to be the first step in that process.

Learning to communicate with the assistance of a counselor or therapist

On the other hand, your marriage may require more hands-on assistance from someone other than yourself or your spouse. The problems in your marriage may go beyond a loss of communication skills or even ambivalence towards the relationship. You may have experienced some degree of infidelity be it physical or financial or may even have experienced violence within the marriage. These are very serious situations that can certainly lead directly to a divorce. With that said, working with a marriage counselor or therapist may be beneficial on a number of levels.

As we discussed earlier in today’s blog post, one of the side effects of being at home more this year than ever before has been that spouses have nowhere to escape to when problems are ongoing in the marriage. This can be both a good and bad thing. It is a good thing in that you cannot suppress the obvious signs of a problem in a marriage and are therefore more likely to take action to improve your marriage period on the downside, if the problems in your marriage become physical or relate to violence it is more likely that you will become a victim of violence or will perpetrate violence upon your spouse.

How can you overcome these problems? I am going to write the remaining portion of today’s blog post from the perspective of you as the spouse who has been the victim of violence. The reason for this is that I can relate to you what I have learned from other people as far as effective tools to keep yourself in your family safe. This can be step by step instructions and information that will help you to develop a plan to keep yourself safe. From my perspective, it makes more sense to write this way than to attempt to have me analyze the thoughts of an abusive spouse. However, if you are a person who has a history of abusing your spouse That is absolutely something that you need to seek treatment and help for immediately.

In the event that you become concerned about being abused by your spouse and you should take some immediate precautions to keep yourself safe and perhaps even leave the home if necessary. In the world of Child Protective Services, the state agency and the parents of an abused or neglected child will develop what is called a safety plan. This safety plan will discuss how the parties involved will work to create a safe environment at home for the children in hopes of reunifying them with their parents. For you in an abusive marriage they safety plan most seek to do some of the same things.

The first thing I would do if you are being abused is to make sure you and your children are safe. Despite the ongoing pandemic there are shelters and other places for you to turn in the event that you need to leave the home. You should have a list of these places ready and have been in contact with them previously about the availability of a place for you and your family stay on a short-term basis. In the alternative, you should make sure that you have people in your life who are aware of your circumstances and who may be willing to lend a hand to provide you shelter and protection on a short-term basis.

Next, I would always keep a bag of clothes, essentials another personal items ready to go in the event that a situation at home becomes violent. This also means that car keys should be in an obvious place where you can take them any spare set ready if need be. Make sure that your car is always fueled up and that your children are ready to leave at the drop of a hat. If the situation becomes serious enough you should practice leaving the home with your kids just as you would practice leaving the home in the event of a fire.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about the services that our office came provide to you as a client of ours.

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Emergency order extends eviction-diversion program deadlines

Originally published by Staff Report.

Editor’s Note: The Texas Supreme Court issued the following advisory on December 22.

In an emergency order posted Tuesday, the Texas Supreme Court has extended deadlines for procedures for tenants and landlords under a statewide housing-assistance program intended to avoid evictions for tenants behind on rent.

The Texas Eviction Diversion Program, announced in October, is supported by Gov. Greg Abbott’s commitment of federal money for landlords to provide an eviction alternative. Eligibility for rental assistance under the program will be administered by the Texas Department of Housing and Community Affairs.

The revised order, the 31st the court has issued to answer issues prompted by the coronavirus pandemic, is effective immediately for certain “pilot” counties determined by the Office of Court Administration and, for all other counties designated as pilots in the program, the effective date will be set by the Office of Court Administration. For all other Texas counties the effective date will be announced later by the Office of Court Administration.

Under the order establishing the program an eviction proceeding may be abated by agreement for 60 days. Courts will provide tenants with information about the program and court records for participants will be confidential while eviction cases are delayed.

The order specifies that eviction pleadings must include notice to tenants that they may be eligible for as much as six months past-due rent paid if they and their landlords agree to participation in the program.

The continuing order also outlines procedures for reinstating evictions. Without such reinstatement, eviction cases will be subject to dismissal.

The order also notes that information is available here and here and that questions may be answered by calling the Texas Legal Services Center at 855-270-7655.

The order expires March 15 unless extended by the chief justice of the Supreme Court.

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Yes, Your Employer May Be Able to Require You to Get a COVID-19 Vaccine … But It Depends.

Originally published by Jennifer Spencer.

As vaccines for COVID-19 begin rolling out across the country, many employees may be asking whether their employers can mandate vaccinations in order to return to work.

Because COVID-19 has devastated the U.S. and global economy, the vaccine has the potential to restore the millions of jobs lost to the still-raging pandemic. According to a Kaiser Family Foundation survey, however, about a quarter of Americans are reluctant to take the vaccine. Depending on where those reluctant Americans work and live, their resistance could hamper the ability to get the pandemic under control and return Americans to work.

The U.S. Equal Employment Opportunity Commission (EEOC) recently issued guidance on whether employers can require workers to get the vaccine (see Section K of this document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” ).

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At Jackson Spencer Law, we represent employees who have questions about their workplaces’ responses to COVID-19.
Visit our services page for information about all the ways we can help.

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Can your employer make you get a COVID-19 vaccination?

Yes, your employer can, under most circumstances, require that you get a COVID-19 vaccine if you wish to retain your job. But that doesn’t necessarily mean that if you refuse to get vaccinated you will be fired — if your objection is because of a recognized disability or a sincerely held religious or personal belief.

If an employee has a disability that would possibly be adversely impacted by the vaccine, or the employee can establish that he/she has a sincerely held religious or personal belief that prohibits acceptance of the vaccine, then the employer may be required to accommodate such an employee by either allowing the employee to work from home, or to remain on unpaid leave for a period of time. Other accommodations, however, may instead be available that could allow the employer to nevertheless insist on a return to work without the vaccine (e.g., requiring the wearing of a mask at all times, isolation of desk from other employees, etc.).

It is important to know that requiring employees to provide proof of vaccination is not a new concept. Depending on the industry you work in, you may already be subject to mandatory vaccines. Healthcare workers and public-school employees are probably already familiar with mandatory vaccine requirements.

Federal law permits mandatory vaccination requirements, as long as employers comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Texas law allows for exemptions for medical reasons or for reasons of conscience, including a religious belief — but those exemptions may still allow the employer to bar the employee from the workplace.

Let’s take a look at the exemptions available under the ADA and Title VII.

Medical Accommodations Under the ADA Related to Vaccinations

The ADA enables employees to request an accommodation if they have a covered disability. While there is a split among federal courts about whether a “sensitivity to vaccinations constitutes a covered disability,” there are some conditions that definitely constitute a covered disability that may be adversely impacted by a vaccination.

For instance, immunocompromised individuals and those with a history of Guillain-Barré syndrome may not be physically able to handle a vaccine. Any employee that requests a medical accommodation will have to provide proof of their disability and will also likely need a letter from their physician explaining why they cannot tolerate a vaccination.

Regardless, employers must engage in a good faith discussion with an employee who requests a medical accommodation under the ADA. After an employee provides notice of a covered disability that could reasonably be affected by a vaccination, and requests an accommodation, an employer would need to discuss the requested accommodation with the employee and determine whether it creates an “undue hardship” for the employer, thus allowing the employer to deny that request, or consider another option for accommodation. Note that an employer may require documentation from a physician of a disability and any danger posed by a vaccination.

According to the EEOC, “If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”

Accommodation options may include remote work (as many office workers are doing now) or taking leave under the Families First Coronavirus Response Act, the Family and Medical Leave Act, or the employer’s policies.

“If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker,” the EEOC guidance continues. “Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Because “herd immunity” (the level at which an infectious disease essentially becomes unthreatening because a significant percentage of the population is immune, either through previous infection or vaccination) may at some point lessen an unvaccinated employee’s danger to others, the EEOC guidance says that employers may take into account the number of employees who have already received a COVID-19 vaccination, as well as the amount of contact with others (such as customers), whose vaccination status could be unknown, when determining whether the unvaccinated employee poses a direct threat at the worksite.

Also, because of privacy laws, “it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation,” the EEOC advises.

Religious Accommodations Under Title VII Related to Vaccinations

Some vaccine objectors may also request an exemption from a mandatory vaccine rule if they can establish that a “sincerely held religious belief” prohibits vaccination. Texas law also allows non-religious “conscientious objections” to vaccines, and thus offers broader protection to employees than does Title VII in this regard.

According to the EEOC guidance, the same rules generally apply with employees who seek an exemption because of a medical disability: if the employee can be accommodated — whether through remote work, taking leave, or other accommodations — then they can be excluded from the workplace.

Once again, the EEOC advises, “This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Are you concerned about your rights in the workplace?

If you are concerned about your health or safety in the workplace, we can help. Whether you are concerned about your employer failing to implement COVID-19 protections, or if you fear you may not be able to comply with a mandatory vaccination policy, we can help you determine your rights and next steps. Contact our office for a free consultation, or for more information.

The post Yes, Your Employer May Be Able to Require You to Get a COVID-19 Vaccine … But It Depends. appeared first on Jackson Spencer Law.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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