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Updated: 2014-10-14T02:48:14.263-07:00

 



Tax Credits: The Easy Way to Save Money

2007-02-18T18:06:38.896-08:00

In this episode we’ll discuss tax credits and we’re going to speak with Stephen Fishman, author of Lower Taxes in Seven Easy Steps (Nolo) In a previous episode, we talked to Steve about tax deductions. Many people are confused as to the difference between a credit and a deduction. Here’s how it works. Let’s say you’re in the 28% tax category. If you had a $1,000 tax deduction, you would deduct that from your taxable income and then you determine your taxes. The result of deducting $1,000 is that you would save $280 in taxes. But if you had a $1,000 tax credit, you could deduct that directly from your taxes. So you would save $1,000 in taxes. So, a $1000 tax credit is always going to be more valuable –maybe three or four times as valuable – as a $1000 tax deduction. It all depends on your tax rate. Nolo: Okay, we asked Steve Fishman what could a typical family do to maximize their tax credits? What’s available to your average tax paying family member?Stephen Fishman: Well, if they had a baby, bought a hybrid car, added new insulation to their home, installed a solar water heater in their home, incurred child care expenses so that they could both work, and took night classes at a local college they could have reduced their taxes by approximately $6,000 to $7,000.Nolo: It’s been reported that the average tax credit for a hybrid car is $2,000. We asked Steve if that was accurateStephen Fishman: Not necessarily $2,000. That depends on the type of car and its fuel consumption statistics., In addition, another factor complicates things. Congress didn’t want to allow too many tax credits for hybrids, so once a hybrid manufacturer sells 60,000 vehicles, the credit will be phased out over the following 15 months for all hybrids produced by that company. You can find the phase-out times and percentages in my book, and at the IRS website.Nolo: That brings up another point, tax credits come and go. Some tax credits have been around for years and are more or less permanent—for example, the child care credit and low income housing credit, for example. Others have been created more recently and have scheduled phase-out dates. Congress can, and often does, extend credits that are scheduled to end. Some credits like the research and experimentation, work opportunity, and welfare to work credits have been extended one year at a time for several years. However, there is no guarantee that Congress will extend a tax credit so it’s always wise to act before the expiration date if you want to use a tax credit that is scheduled to expire.As Steve pointed out there are various tax credits for homeowners and as he indicates in his book, fuel efficiency is the primary target, here. Among the credits, there are great breaks for homeowners who put in fuel efficient windows, roofing, insulation, and heating and cooling systems. However, there are some rules you’ll have to follow: Homeowners must buy these energy efficient products during 2006 and 2007 and the total combined credit you can get for all tax years is $500, and no more than $200 of the credit can be for windows. The other thing to keep in mind is you get the credit only if the items you buy meet the energy efficiency specifications established by law and a lot of these specifications are quite stringent—for example, an electric heat pump water heater qualifies for the credit only if its energy efficiency is over twice as great as the current federal standard. Make sure the product you want to buy qualifies—don’t take a salesperson’s word for it. Also, more generous credits are available to homeowners who install solar water-heating or electric power systems in their homes.Steve Fishman also mentioned that there is a tax credit for having a child. That child tax credit was created for low and middle income taxpayers. We asked Steve about the requirements.Stephen Fishman: It is subject to an income threshold and the amount of credit you can take each year goes down as your income approaches that threshold amount. For example, a married couple filing jointly [...]



Second Homes: What Should You Know

2007-02-20T20:37:13.766-08:00

This is our second interview with Craig Venezia, a nationally recognized mortgage expert and the author of Buying a Second Home: Income Getaway Retirement from Nolo. In our previous interview we discussed issues that arose when co-buying a second home. In this interview we’ll focus on several issues involving the financing and the location of a second home.Nolo: Craig let's start with the location. When making a decision about buying a second home some people buy locally and some people buy in a vacation area while others buy in a location where the house prices may be lower than where they are currently living. Can you give us any suggestions for where to look for a second home?Craig Venezia: A general rule of thumb for where to buy your second home is to keep it within a two hour's drive away. The benefit of this is that it doesn't take you all weekend to get to your weekend getaway. And you also have to think about not just enjoying your home but also property management and upkeep issues and that's true for investors who are renting out their place full-time, people who are buying a weekend getaway, or the person that's going to be using it as a retirement. One interesting trend that we've been seeing is that a lot of people are actually buying second homes locally, either in the same town or a neighboring town. And what’s interesting about this is a lot of people who are buying for future investment are doing that because they like the town where they live, they know the area, they’ve established family and friend connections. They don’t want to leave the area but they also know that when they retire they don't need this big home so what they're doing is buying in the general area, renting out their places, and then, when they retire, five, ten, fifteen years down the road they will move into their current second home and make it their primary residence.Nolo: Let's say that you're considering buying a second home in an area that you are not really familiar with what's the best way to start that process?Craig Venezia: First and foremost I always say pick up the Yellow Pages or go online, find a local real estate agent. They are the ones that knew the towns where you'll be looking. This is particularly true if you're coming to an area where you have less familiarity and that is true too, if you've been to the area but you just vacationed for a week or two and then leave. You want to know the ins and outs of an area. Your best resource is to go to a real estate agent and work with them and learn as much as you can about the area.Nolo: Okay let's talk about financing. It's often hard for buyers to acquire a first home let alone a second home is there any way to bypass the typical bank loan?Craig Venezia: There certainly is. I strongly recommend private home loans. This is where the purchaser borrows money from a family member or even a friend, usually at a reduced rate compared to what you would get from a traditional loan. Both parties benefit from this arrangement. The borrower enjoys the flexibility and usually a lower interest rate than that of the traditional bank loan while the lender receives a higher return than a comparable investment such as a stock or bond may yield. Just keep in mind that this financing option is still a business transaction and should be treated that way. You want to have a local real estate attorney draft the loan and mortgage documents while making sure that all parties understand their obligations—for example, your parents can't foreclose on your house just because you were late arriving to their 50th wedding anniversary.Nolo: Still with so many people struggling to buy a first home it seems like only the wealthy can get into the second home game.Craig Venezia: It’s a common misconception that only the wealthy can afford to buy second homes. Actually many everyday people with middle incomes are doing it. I've seen beauticians, contractors, middle managers, everyday people you pass in a street, who can afford to buy a second home. You just need to b[...]



Disciplining Employees: What are Some Common Mistakes?

2007-01-20T20:23:02.942-08:00

We’re speaking with attorney Lisa Guerin, an expert on employment law issues and co-author of the Progressive Discipline Handbook (Nolo).NOLO: Lisa, Let’s say you “inherit” an employee—for example, from another department—and you discover a discipline problem. You start talking to the employee’s old manager, and find out that the employee’s had the same problem before, but the former manager didn’t do anything about it. If you do decide to discipline the employee, can you discipline for the older incidents, as well?LISA GUERIN: It’s really not a good idea to discipline for those older incidents, but the reason isn’t really legal, it's more practical. The whole point of progressive discipline is to give employee an opportunity to improve, to tell them what the problem is, and then work out an improvement plan. And you haven't really given this employee the opportunity to know what the problem is, for example, to talk it over with the manager and to try and come up with some way to improve. NOLO: Lisa, in the book, you talk about “overdocumenting” employee discipline. How is that possible? Shouldn’t you write down everything that happens?LISA GUERIN: Well, you should write down enough that you'll be able to remember later what happened and that anyone else who's reading your documentation can figure out pretty easily what happened. What you don’t want to do is to nitpick and micromanage. You know, from a practical level, if your employee feels that you’re always looking over their shoulder and marking down everything that they do wrong, they’re going to feel anxious and it’s going to be difficult for them to really improve and feel supported. And on the legal side, if you ever have to use your documentation for example in a courtroom, a jury who sees that kind of your documentation is going to smell a setup. It’s going to look like you were trying to write down everything that the employee was doing wrong so that you would later have an excuse to fire that person. And that's why it's best to, of course, document, and document thoroughly, but just don't go overboard.NOLO: Lots of employees have attendance problems. Let’s say you have an employee who’s always calling in to say she won’t be in. You tell her that she has to call within the first half hour of when her shift starts. If she doesn’t call you, but it turns out she’s allowed to have the day off because her leave is legally protected—let’s say she has jury duty that day—can you discipline her?LISA GUERIN: That’s a really great question and the answer actually has two parts. You can’t discipline her for taking the time off. Employees are entitled to take time off for a variety of reasons and jury duty is one of them. An employee can take time off for family and medical leave, or, in a lot of states, an employee can take time off to vote, if they wouldn't otherwise have time. But you can require employees who are taking time off for these reasons that they know about in advance, to follow your regular policies about checking in with a supervisor, or in this example, giving notice. So you could discipline the employee for not following your rules particularly because she must have known that she was going to have to go to jury duty that day. NOLO: When disciplining employees you advise people not to make promises about the future. What happens if you do? And if you already have made promises, what can you do to undo those promises?LISA GUERIN: The reason why you shouldn't make promises about the future is that you might have to keep them and you’re really not in a position, right now, to know what's going to happen. For example, if you promise an employee, ‘You know, as long as you can get those numbers up, we’re going to promote you to be a manager,’ and then let's say your company has to have layoffs and the employee is targeted or you have a great candidate, come up that you want to hire for that manager's position. The employee is going to be left[...]



What Do You Do If Your Business is in Financial Trouble?

2006-12-13T21:43:15.905-08:00

This week our topic is financially troubled businesses, and we’ll be speaking with attorney Fred Steingold, author of the best-selling title, “A Legal Guide for Starting and Running a Small Business.”NOLO: Fred, your book, A Legal Guide for Starting and Running a Small Business, covers a lot of material. It’s easy to see why it’s one of the best-selling guides on the subject. But in this broadcast, we’re particularly interested in your chapter about the financially troubled business. One of the things you mentioned in that chapter is that a businessperson needs to think ahead to protect personal assets. How does a person develop an asset protection plan?FRED STEINGOLD: Let’s say you own a home, car, you’ve got stocks and bonds, you’ve got a savings account… those are your personal assets. You’ve worked hard probably to acquire those things, and you want to protect those assets to the greatest extent possible in case your business fails. You don’t want to have some creditor seize those assets to pay for business debts, so your asset protection plan is all about protecting those assets, and it starts with your choice of entity. By that, I mean how you’re going to do business, and how your business is going to be structured. There are two basic ways. One is either having a sole proprietorship or a partnership, and in either of those cases, you’ve got complete exposure. If you’re a sole proprietor for example, all of your assets are at risk for whatever the business does. If you have a partnership, each partner is personally reliable for all the business debts, and so, you’re completely at risk. Now, the opposite of that is the corporation or the Limited Liability Company (we sometimes call that an LLC), and in that case, your exposure is limited, and the reason is this: the law treats a corporation or an LLC as an entity that’s separate from the owner. You’re a shareholder in a corporation, you’re a member of an LLC, and those are different from being the business itself, so for people who are concerned about asset protection, it’s a much better choice to have either a corporation or an LLC, and granted it costs a little more to set these up and there’s a little paperwork involved, but the tradeoff is that you have greater piece of mind. So, that’s one step if you’re going to have an asset protection plan. Another one is, if you can at all help it, don’t sign a personal guarantee for business loans or business credit. Sometimes you don’t have a choice; if you’ve got to borrow money from a bank in order to get started they’re going to want you to guarantee the note, but you try not to do that, or if you must sign a guarantee, see if you can limit its effects; see if you can limit the length of time that it’s going to be in effect, maybe one year or two years rather than indefinitely, and maybe put a cap on your liability. If you’re borrowing $20,000, maybe you’re only going to guarantee $10,000 of it. So, there are ways to try to keep that exposure to a minimum. If you’re going to sign business loans another technique is, don’t have your spouse co-sign the loan. The reason for this is that, in many states, if only one spouse signs the loan, then the creditor can’t go over jointly owned assets. One other thing: you probably shouldn’t pledge your home as collateral for a business debt, because if your business goes bad, you at least want to have a place to live. And probably something else is you of course want to maintain adequate insurance for your business; there are certain risks you can protect against through insurance, and that would also help protect your personal assets.NOLO: Fred, you mentioned something about not having your spouse sign documents. Do you mean not having your spouse co-sign those documents?FRED STEINGOLD: Co-sign a loan, particularly. If you’re going to borrow money for your business, it would be better if you sign it in your own name by yourself, and[...]



Blogs, Websites & Podcasts: When Do You Need Permission?

2006-12-13T21:44:40.333-08:00

In this episode we’re going to examine what happens if you use other people’s material in your business – for example, you use someone’s artwork on your blog, using someone’s music on your podcast, or using another company’s trademark at your website.We’re speaking with Rich Stim, the author of the book Getting Permission from Nolo and an expert on copyright and fair use.NOLO: First question, Rich do I need to get your permission to interview you for this podcast?Rich Stim: Well, in my case, no and it’s similar to the case of most interview subjects for podcasts or newspapers or magazines. I see that you’re taking notes. You’ve told me it’s for an interview. And in this case I see the microphone, so I’m impliedly consenting to have my words broadcast or recorded or used for whatever purpose you’ve told me it’s going to be used for.There are times when you should get a signed interview release. And I want you to keep in mind one thing which is we’re only talking, right now, about the right to use the statements that are made by an interview subject. I’m not talking about the rules for getting permission to use copyrighted music or photos or artwork or anything else. We’ll talk about that later.But as a general rule, as you move from editorial uses to commercial uses for interview subjects, if you follow that meter from one side to the other as it gets closer to commercial and further away from an editorial use, you should get a signed release.What’s the difference between editorial and commercial? Well, if you’re interviewing a lawyer, like me, for an article or information style podcast, that’s probably an editorial use. But if you were creating a book of interviews with lawyers, or if you were using this interview as means of advertising some other legal service like a lawyer directory, I think at that point you definitely would want to have permission from the person, something signed and in writing indicating consent for those commercial purposes.Another situation you need permission from an interview subject is if you’re working on a project and it’s a project in which other companies or distributors are involved. For example, if you’re making a documentary film that involves distributors, production companies, and everyone up higher in the food chain is going to ask you for evidence of permissions – whether or not they’re following the rules I’m talking about. So even if the use seems purely editorial, the distributor, or the book publisher may want the release. So, it’s best to get those at the time of the interview; it’s hard to go back and get that release later.Another thing that arises with interviews is that an interview subject may ask to read or edit the interview or to have some comments removed or kept “off the record.” Any agreement that is made with the interview subject, including an agreement for anonymity, should be documented. Failure to honor the arrangement may give rise to a lawsuit for monetary damages.By the way, I’ve posted a downloadable sample interview release, along with a transcript of this podcast at nolopodcast.blogspot.com.NOLO: What’s the best way to get someone’s permission without making it seem really legal and scaring the person away?Rich Stim: Okay … now we’re moving beyond interviews and talking about all kinds of permissions … for example, permission to use someone’s music or photography or to use a model’s image in an ad. These cases are often different and it always it depends on what you’re using and what you’re using it for. But let’s just assume you’re going to need permission for what you’re doing.When you want to get that permission it’s always best to keep it short and sweet – if you can – for example, I’ve met photographers for example who have reduced their model release forms to the size of a business card because it seems less imposing.And the other thing you want t[...]



What's the Best Way to Discipline An Employee?

2006-12-14T14:43:41.399-08:00

We’re speaking with Margie Mader-Clark, an expert on human resources issues, and the author of, “The Job Description Handbook,” from Nolo. Margie is currently working on a book on progressive discipline.QUESTION: Margie, to the layperson, the term “progressive discipline” sounds like a very unpleasant experience, sort of like corporal punishment. What does the term mean, and why has this term gained in popularity among human resources experts?MARGIE MADER-CLARK: Well, it’s funny; I’m not sure that it is popular. In fact, it seems to be fading in popularity in human resources. I myself don’t like the term, because of all the connotations that you described. We’re using terms now more like, “Get-well plans,” or “Performance improvement plans” that are really designed more towards keeping people on board. “Progressive discipline” sounds very negative and very “you’re on your way out.” Keep in mind, the spectrum of reasons that you would employ discipline is huge; it’s broad ranging. It ca be from simple performance issues from absenteeism or tardiness, all the way up to horrible things, like sexual harassment, and violence in the workplace. So, to try to capture a term that gets all of those I think is a difficult thing, and it’s one of the reasons why we went with “progressive discipline.” Most of the time what you’re really trying to do is correct performance issues. So, things like corrective action plans, things like performance improvement plans, are a better sounding terminology for that function of this. But it is what it is; it’s sort of, this is a process, it’s a step-by-step process that’s intended to change the direction of performance or behavior of an individual, so, that’s discipline, so if you think about it in those terms, it is a progressive discipline process.QUESTION: Some people describe progressive discipline as a ladder. Why is that?MARGIE MADER-CLARK: Yeah, if you think about the steps of progressive discipline, or one of these other types or names for the same thing, certainly the way that this book is set up, the goal is to correct behavior. So, these would get ever more intense as that behavior doesn’t correct, I guess is the way to think about that. So, some of the different steps, you would start with basic coaching – here’s what’s going wrong, here’s what impact it’s having, here’s why we need it to get better, let’s talk about how we might do that. From there, if it’s not improving, you would go to another step called a verbal warning, which is, “You need to do this and this and this, by this particular time.” This book advocates a collaborative process to make that happen, where you actually are involving the employee in coming up with the solution for the issues, and that goes through all the steps of this. From a verbal warning you’d go to a written warning that says, “Okay, now we’re getting serious. If this doesn’t happen by this particular time, with these particular measures of success, we may move on to the next step, which would be suspension or termination.” Suspension is used pretty rarely, and it’s used primarily when you need someone off the premises while you either do an investigation, or you need a situation to cool down, so the most logical next step after written warning is typically termination. Basically, you can think of it sort of almost like a “three strikes, you’re out” type of process. For most of the behavioral issues, you would cover most of the steps; for some issues, you’ll jump right to the top.QUESTION: Not every company appreciates progressive discipline; some prefer to avoid the counseling and strategizing. Instead, they reprimand, suspend, or terminate. This seems pretty efficient – what are the disadvantages of good old-fashioned punishment of bad employees?MARGIE MADER-CLARK: For some, again, for some issues there are no disadv[...]



Is it Harder to Sell a Retail or a Service Business?

2006-12-10T16:48:31.885-08:00

We’re speaking with attorney Fred Steingold, an expert on small business law. We’re going to talk to him about the issues that arise when you’re buying or selling a business. Fred is the author of “The Complete Guide to Selling a Business,” from Nolo.NOLO: Fred, is it harder to sell a retail business versus a service business? What are the concerns when you’re selling these types of businesses?FRED STEINGOLD: I think that those concerns are probably greater on the part of the buyer. The buyer’s going to be interested in what kind of inventory you have, for example, in a retail business, and the location will be very important. In a service business, the location may not be quite as important; if you have an electrical contracting business you could be out someplace off the main drag and still be doing business, but the buyer in that situation is going to want to know about your contracts; do you have long-term contracts and can they be assigned to the new owner? So, the buyer’s going to have different concerns and different focuses depending on whether it’s a retail or a service business.QUESTION: Here’s a tough question for a lot of people: what makes a business saleable?FRED STEINGOLD: In order for a business to be saleable, you have to put yourself in the shoes of a buyer, and look at what kinds of things a buyer will want. Probably the most important thing is that the business has a good profit history. The buyer wants to see that the business has made money for the last couple years at least. Also, not only that it’s made money, but if the buyer is going to work in the business, which is very common for a small business, the buyer will want to see that there’s enough money coming in to pay a decent wage for the time that the buyer puts in, in operating the business. The buyer wants to know that there’s a lease in place, and that he or she will be able to continue on in that location after the purchase. The buyer’s going to want to see that the place of business is in good repair and is neat and attractive-looking, and, if it’s a retail business, that the inventory of goods is up to date. Those are the main things I would say that a buyer is going to be looking at. If the business has an exclusive distributorship, the buyer’s going to want to be able to take that over as well.QUESTION: So, what you’re really saying is that it’s all about timing, right?FRED STEINGOLD: Yeah, that’s right, in terms of business itself. Sometimes there are external factors, though; sometimes there are business cycles, and of course you’d like to be in an upswing kind of a situation where business is perking, but even in a bad business cycle, there might be opportunities. For example, sometimes corporations are laying off managers, and they’re sometimes offering a buy-out package, and so those managers, who are tired of being wage-slaves, may have a pocket full of money, and may be looking for an opportunity to go into business, and sometimes even when things are bad in the big business world, there may be opportunities for someone to sell a business.QUESTION: What if you want to sell your business, but your partners or the other owners don’t want to sell, or what if you can’t seem to agree on the selling price? How do you sort these things out?FRED STEINGOLD: One way would be to see if they’ll buy you out. Give them a price for your interest in the business, talk to them about some installment terms, and maybe they would buy you out, and you’ll be free to go elsewhere, and they’ll wind up owning the business and they can continue it as they wish. If that doesn’t work, you might want to call in a mediator to figure out how to resolve it, or some neutral third party to help create a win-win situation. In some situations, you may be able to force a sale; for example, if you have a partnership, if any of the partners wants to di[...]



Do Dads Get a Fair Shake in Divorce?

2006-12-10T16:46:29.281-08:00

We’re speaking with Paul Mandelstein, the author of Always Dad: Being a Great Father During and After Divorce from Nolo.NOLO: Many Dads don’t think the legal system is capable of giving them a fair shake in the divorce process. What do you think and what, if anything, can be done to balance the arrangement?MANDELSTEIN: The arrangement might be unbalanced, but in the last ten years or so things have been shifting and more fathers are wanting to spend more time, and being more present and accountable. And basically, what you really need to do from Day One is to stay in your kid’s life, which might be hard, because everything’s emotional, but you’ve got to make sure that you create a legacy that you’ve been there from Day One, that you pick up the kids from school, doesn’t have to be full-time, any of that, but you need to show that from Day One that you’re in their life, that you’re not abandoning them. So that creates a clear pathway. Because often, you’ll move out of your house, and it’ll appear like you’re not taking care of them, and that you’re going to be the “weekend dad.” But if you just create a clear path that you are being there on a daily basis, and you’re very involved, and try to document that in some way, an email or whatever, that will help a lot.NOLO: When you say Day One and you refer to the history … What point are you referring to exactly … the date of the divorce filing.MANDELSTEIN: The history of when you split up, because when you’re an intact family, it’s hard to know who did what, and who’s taking care of who, but when you split up, you need to stay in the kid’s life. And if you want custody, if that’s your plan, then you should, from Day One, cut that amount of time for them, and ask for that amount of time. If you can only see them two days a week, then see them two days a week. But you need to set that precedent, because otherwise courts will look at this thing six months down the line and make a determination, and they’ll say “Well, you know, you haven’t been around, and you know, we’ll just keep it the way it is.” So it’s important to be pro-active in this way and step up.NOLO: Paul, one point you make in discussing the initial breakup between a husband and wife with kids is that spouses should not jump right into the legal proceedings. Take it slow. Analyze the situation a little bit before you rush off to the lawyer’s office.MANDELSTEIN: Exactly. One thing that’s going to happen is, as soon as someone goes to the lawyer’s office, that raises the ante quite a bit. And it makes things more emotional, more volatile, because even if you’re the one filing for divorce, things are going to change, right then. If the hot buttons are still hot, and no one’s in a big rush, your kids are okay, the money’s in place, and you can agree on things like that, it’s fine to wait until things settle down. Filing the papers is almost the point of no return.NOLO: Your book is a very helpful manual for divorcing Dads. It even includes some advice on cooking. One tip you give is about using “right speech” Can you elaborate a little on what that is?MANDELSTEIN: Right speech comes from a Buddhist term. And the Buddhists teach that right speech is essential for a satisfying life. And it means telling the truth, refraining from unjust criticism of others, using language constructively rather than harshly, and refraining from gossip. If you follow these principles, it can go a long way towards creating and maintaining a collaborative divorce. But because avoiding the truth, criticizing others and using harsh language and gossiping are all ways we vent our pain when our relationship breaks up, it’s far easier said than done.NOLO: I liked your ten rules for communicating with an ex-spouse. One of the rules – listen to your ex-spouse without defending your[...]



Can a Nonprofit Make a Profit?

2006-12-10T16:44:58.102-08:00

We’re speaking with Anthony Mancuso, an expert on corporations, business forms, and nonprofits, and the author of, “How to Form a Nonprofit Corporation.” We’re going to speak with Tony today about the ability of a nonprofit corporation to earn income.NOLO: Tony, most people understand that nonprofits get special tax breaks, but one thing that’s not clear about nonprofits is whether they can actually make a profit. Perhaps you can start out by defining the word “profit,” and then explaining whether a nonprofit corporation can actually make a profit.TONY MACUSO: Well, it’s interesting, because the common meaning of profit is basically, you take in more than you spend, and you end up having a margin or a profit related to your activities that isn’t really what it is meant under the nonprofit statues. Basically, they don’t want you to be a commercial profit-making business; they don’t want the end that you’re trying to achieve to be the making of money. So, it’s not really in an accounting sense, it’s more of a common sense definition that has to do with your motives, your reasons for operating a nonprofit. They don’t want a substantial purpose to be simply to make money. It’s okay to make money, but they don’t want that to be your overriding interest, so it’s rather fuzzy and vague, the standard, but that’s really why they look very closely at your operations when you apply for tax exemption; they want to see your overall purposes of your program. If they feel, for instance, that you’re going into a publishing business simply to sell books to make money and not for any other reason, they’ll say, “Well, you’re a profit-making business; you really don’t qualify as a 501 (c) 3 educational nonprofit.” On the other hand, if you’re selling books that do the public good, that are clearly focused on benefiting the public and educating them in a certain way, then you can qualify, and you can make money from your sales.NOLO: If a nonprofit can make a profit, then what can’t it do with this profit?TONY MANCUSO: The big thing you can’t do, the major prohibition, is against self-inurement; you can’t help out anyone individually in their individual capacity associated with your nonprofit. So, you couldn’t take the money you made and simply pay it out as some kind of benefit to your CEO, and say, “Thanks a lot; we’re so happy you’re with us, here’s the extra profits.” In other words, give someone a participating profit interest in your nonprofit. Now, obviously, people try and get around that sometimes, but the whole point is, you’re not supposed to be their to benefit anyone in their individual capacity; you’re supposed to be benefiting the public at large, or a segment of the community. So, you can spend your money in any way you want to help that purpose, to help your nonprofit purposes, but once you start paying people simply to pay them, to kind of thank them, to incentivize them… basically, the nonprofits statutes and regulations say that’s not a valid nonprofit way to spend your money.NOLO: You used the term “self-inurement?”TONY MANCUSO: It’s an old-fashioned term, inurement, and it basically means a self-benefit. So, we’ve heard in the news over the last several years, there’ve been some scandals regarding some fairly well-known nonprofits where that’s exactly what they did; they bought yachts for their executive officers or had them available for them. So, spending money in that way, to benefit someone personally, is self-inurement, and it’s prohibited.NOLO: You provided an example in your book, where Friends of the Library Nonprofit gets a lot of donations for its book sale, but after its sale, there are a lot of books left over, so the nonprofit sets up a way to re-sell these books using outside dealers. You write in your[...]



Should You Co-Buy a Second Home?

2006-12-10T16:42:02.510-08:00

We’re speaking with Craig Venezia, a nationally-recognized expert on home mortgages, and the author of the soon-to-be released, “Buying a Second Home: Income, Getaway, or Retirement.” Today, we’re in the midst of a second-home ownership boom, fueled by such factors as the shrinking American family, older and wealthier households, and new technologies for working from home. One out of every three homes purchased in the United States today is a second home. A 2006 survey by the National Association of Realtors revealed that most second-home owners are married couples - 83% of vacation-home owners, and 75% of investment homeowners. Also, that minorities are playing an increasing role in the second-home market, accounting for 11% of vacation-home purchases, and 17% of investment-home purchases, and that buyers must be enjoying the second-home experiences. 21% of vacation-home buyers go on to buy one or more additional vacation homes, and 34% of investment-home owners go on to buy additional investment properties. Perhaps you’re thinking about taking the plunge, maybe as an alternative to other investments. For example, to rent or resell the property. Or, maybe you’re thinking of buying a cabin by your favorite lake or your favorite ski area. Or, perhaps you’re thinking ahead towards retirement; you may want to find a manageable, well-located home now. Whatever the reason, investment, vacation, or future retirement, the purchase of a second home can still be a burden. One solution is to share ownership of a second home. That can significantly reduce your debt burden. Co-ownership might also, depending on the background of your co-buyer, enhance your collective knowledge of home improvement, financing, property management, and other relevant matters. But, co-ownership of a second home may also have downsides. We talked about it with Craig Venezia.NOLO: Craig, over the past five years, median home prices have skyrocketed 37% nationally, while household incomes have grown by only 4%. So, someone who is maintaining one household and home may be stretched to purchase a second home. One solution you discuss in your book is to partner financially with someone else interested in owning a second home. Why don’t you start out by listing the pros and cons of shared ownership?CRAIG VENEZIA: Shared ownership, also called co-ownership, is effectively buying a home with another person, and what that means is that both of you are putting your money in, both of you are appearing on the mortgage documents, both of you have legal ownership of the property. Depending on how you structure the deal, it may be a fifty-fifty split, or it may be some proportionate amount based on who puts in what money, who is doing property upkeep and management, etc. But, overall, the things to think about with co-ownership are that it’s a way to have somebody else share the debt burden of owning a second home. For many people that can mean the difference between whether they even own a second home or not. Now, obviously, there are a couple of other benefits, as well, that you’d want to look at; depending on your co-buyer’s background, you may be able to round out experience where you’re lacking. So, for example, if you are sharing the purchase of a home with someone who is handy with a hammer and you’re not, that person can bring those skills to the table. Maybe you’re pretty good on the financial end and managing the books, you add that to the table, so everybody wins. It also saves a lot of time in the management and upkeep in a second home; you can share the responsibilities, which a lot of people find very advantageous. Now, you’re right, where there are pros, there are also cons, and the cons are something that you really need to look at, and then balance the two, and decide which makes s[...]



Is Divorce Bad for Your Health?

2006-12-10T16:40:05.525-08:00

In this episode we’re going to talk about divorce and health issues and we’re going to speak with attorney Emily Doskow, author of Nolo’s Essential Guide to Divorce. There’s little dispute that divorce has a negative impact on health.For example, a study published in the August 2006 Journal of Marriage and Family indicates that women who had been divorced, widowed or remarried were more likely to develop heart disease than those who were married continuously. Other studies have shown that divorced males have higher rates of some types of cancer than their married counterparts. Premature death rates -- defined as occurring between the ages of 15 and 64, -- are significantly higher among divorced men and women compared to married persons of the same sex and age. There is considerable evidence that divorce can cause short-term and long-term emotional problems for children. And the National Institute of Mental Health has stated that "the single most powerful predictor of stress-related physical as well as emotional illness, is marital disruption."Since divorce appears inevitable for many couples -- approximately forty percent of the marriages in this country end in divorce -- what can be done to alleviate the stress in the legal process and what can be done to preserve the health of everyone involved in a divorce?We asked attorney Emily Doskow some questions that relate to divorce and health.NOLO: Emily, in your book, you make the point that there’s not just one way to divorce. Perhaps you can summarize the various ways couples divorce and then explain – at least in terms of stress and emotional turmoil, which methods might get the highest ratings for preserving your health.EMILY DOSKOW: There’s definitely a continuum that goes from “do-it-yourself” uncontested divorce where there are no lawyers involved and you just do the paperwork and figure it all out yourselves, to the opposite end, which is the sort of knock-down drag-out divorce trial that’s ugly and expensive and horrible for everybody. And then in between, there are a lot of other options, like a mediated divorce, a collaborative divorce, arbitration, or even a divorce that you settle by having lawyers negotiate for you.From my perspective, a mediated divorce is the most conducive to people’s mental and physical health, because mediation is a process that supports everybody having their say, everybody getting heard, creating solutions that work for both people and for the kids, and promoting good communication that will support the ongoing relationship, especially between parents.NOLO: Let’s talk about something that has a direct impact on people’s health -- health insurance. Many people are insured through their spouse’s health insurance. Can a divorcing nonemployed spouse ask that as part of the settlement, the health insurance will continue under the other employed spouse’s policy?EMILY DOSKOW: The nonemployed spouse actually doesn’t need to take any approach…it’s not really a negotiation. That spouse has a legal right under a federal law called COBRA to continue their insurance coverage for three years after the divorce is final. All they have to do is make sure that they comply with some very strict time limits for notifying the employer and the insurer that they want the COBRA coverage, and then paying the premiums in time. They continue it at their own expense, but they have the right to keep it for up to three years.NOLO: Can the nonemployed spouse request those COBRA payments be included as part of the spousal support payments?EMILY DOSKOW: Sure, the employed spouse can continue covering the nonemployed spouse, and that could be considered spousal support, or in lieu of spousal support.NOLO: What about health insurance for children? Can continuing healt[...]



When Can You Stand Your Ground?

2006-12-10T16:33:03.706-08:00

Hello. In this episode we’ll discuss several questions regarding criminal law and thanks to listeners who have posed some of the questions. We’ll talk again with Criminal Law expert Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System from Nolo.We’ll start with a question about ‘Stand Your Ground’ laws. Every state has always had some form of ‘Stand Your Ground’ law. These laws are based on what’s known as the “Castle doctrine,” that is, “a man’s home is his castle,” and that if an intruder broke into a home, the resident of that home could use deadly force against the intruder provided the citizen had a reasonable suspicion that the intruder would inflict serious physical injury. As a general principle in most states, outside the home you could only use deadly force if you were threatened with physical injury and were unable to retreat from the criminal. This was known as the “Duty to Retreat.”.In October 2005, Florida enacted new a type of Stand Your Ground law. Now, Florida residents can use deadly force in their homes even if they don’t fear physical injury. They can fire on anyone who unlawfully, forcibly enters their home. And the definition of ‘home’ now includes vehicles, so a Florida resident can use deadly force against anyone who forcibly unlawfully intrudes in their car or on their boat.The Florida law also extended ‘Stand Your Ground’ rights beyond the home and car. A Florida resident outside their home can now use deadly force if they have a reasonable fear that someone is about to use deadly force against them. In other words, in Florida, outside your home, there is no longer a duty to retreat when faced with deadly harm.When we say that resident can use this law, we mean that the resident can invoke it as a defense from prosecution. And if law officers disagree, the person can be charged with a crime and will have to prove their ‘Stand Your Ground’ defense in court. For example, the owner of a Florida towing company invoked the law to justify shooting a man whose car was impounded. Police disagreed and charged him with murder. At trial, the owner will have to prove that he feared being hit by the driver, who drove off without paying the impoundment fee.In addition, to shielding Florida citizens from criminal charges, the law also shields citizens from civil lawsuits for money damages brought by the person who was shot.South Dakota and Indiana have also passed Stand Your Ground laws similar to the Florida law and fifteen other states are reportedly considering similar Stand Your Ground laws.Opponents argue that these laws – which they refer to as “Shoot First” laws or “Make My Day” laws -- encourage vigilantism, and that they encourage a shooting range mentality, allowing you to shoot people who cut through your backyard if you feel threatened.Proponents of the law argue that it reflects today’s crime realities, that criminals are intent on causing physical harm and that the days of the gentleman thief are over.Legal experts like Anthony Sebok at Findlaw, argue that the laws send a “very confusing message” because they often are not really clear when you can use lethal force without being prosecuted. For example, in Kentucky’s first case under that state’s new home intruder/Stand Your Ground law, the judge hearing the case, said that the law was “confusing, vague, poorly written.” One of the drafters of Kentucky’s penal code called it “the worst legislation I have ever seen.”Stand Your Ground laws will stand their ground legally unless successfully challenged on grounds that they violate the constitution. And that’s one of the questions that we’[...]



Is it a Crime to make a False Confession?

2006-12-10T16:32:27.212-08:00

Hello. This week we’re going to explore criminal law and we’ll address some questions relating to a high profile case recently in the news. We’re speaking with Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System form Nolo, a highly-recommended guide to criminal law.In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime. NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them. In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a polic[...]



How Can You Best Advocate for a Special Education Child?

2006-12-10T16:37:04.989-08:00

How Can You Best Advocate For a Special Education Child?As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepanc[...]



Can You Prepare Your Own Will?

2007-01-10T14:27:49.628-08:00

This week our topic deals with what it takes to do your own will and we’re talking with Nolo editor and author Mary Randolph. QUESTION: Mary, wills deal with two things people often dread – death, and the law. For that reason, many people are wary of preparing a will without an attorney. What’s your response to someone who is fearful of doing it on their own?MARY RANDOLPH: Well, I certainly understand that people want to do it right, it’s an important document, but the good news about wills is that they’re fairly simple, straightforward documents, and you can do one without a lawyer. They really haven’t changed much in several hundred years; they’re standard documents, and if you have some good materials to help you, you can fill in the blanks and make a perfectly valid will.QUESTION: Maybe another way that we can understand how wills work would be if you explain what happens if you die without one.MARY RANDOLPH: That’s right, things get more complicated if you don’t leave a will, because you’re not leaving any instructions for what you want to happen to your property. Or, more importantly, if you have young children, who you want to raise them, and those are two of the key things that you do in a will. Every state has a law under which it will distribute your property if you die without leaving any instructions, and it will go to your closest relatives, and that may be what you want, it may not be what you want. It also has provisions for appointing a guardian for children, if you have young children and you die before they’re adults. And that’s what people really want to take care of; if they have young children they want to name a person who would raise the children themselves if they couldn’t.QUESTION: Let’s say that a person is sitting down to prepare a will. What type of information should they have gathered before they start writing?MARY RANDOLPH: Well, it’s pretty basic; you want to think about your big assets – what kind of property you own (make sure you know what you own and what you co-own with someone else, because of course you can only leave what you own). You want to think about who you want to leave property to – do you want to leave it to children, or would you rather leave it to an adult to manage it for the children, for example. So it’s very basic, personal things, just to think about your assets; you may overlook some things that might be valuable, or that might be contentious after your death. Sometimes people can argue about things that aren’t particularly valuable financially but have a lot of emotional significance. So, that’s something you want to think about before you sit down to write down your wishes.QUESTION: Is it a good idea or a bad idea to speak with family members or friends before preparing a will?MARY RANDOLPH: Well, it’s never a good idea to surprise people with your estate plan, so whether you talk to people before you make your will, and solicit some opinions, or after you make your plan, and you tell them what your plan is, it’s a good idea to let people know what’s coming, and that’s for a couple of reasons. One is because if people are speculating about what you wished, or why you did something, it can really lead to family disagreements. Sometimes these situations don’t always bring out the best in surviving family members, and if they just don’t understand, for example, why you left a certain heirloom, or more property, to one child than another, which you might have perfectly good reasons for doing, if they don’t understand that, then they might feel bitter or resentful; it might lead to arguments and bad feelings. So, you want to explain to peo[...]



How Can Job Descriptions Trigger Lawsuits?

2006-12-10T16:04:27.382-08:00

We're speaking with Margie Mader-Clark, an expert on human resources issues and rules, and the author of "The Job Description Handbook," from Nolo.NOLO: Margie, let's start with a basic question. Why does someone who manages employees need a book about writing job descriptions? Why can't someone just write out the tasks that the employee has to do?MARGIE MADER-CLARK: You have to think of a job description as a management tool that will actually cover a lot more than just hiring someone or laying out the job. You can use it in most every part of the life-cycle of the employment process -- you can use it to set up interview questions, you can use it to orient your new employee and tell them what the functions of their job are, you can use it to measure their performance on those given functions... so a well-written job description can actually take you a lot further in any of the employment processes than just the hiring process itself.NOLO: You write in your book that the most common and costly mistake managers make is to write a job description that can be interpreted as discriminatory. Could you give us an example of how a discriminatory job description can backfire?MARGIE MADER-CLARK: A job description, like any other part of the employment process, is governed by a couple of different laws to do with overall discrimination, Americans with disabilities is another distinct law... a job description needs to be specific enough about what you actually need someone to do or be able to do to do the job. So, if you were to write a job description that had, for instance, a lifting requirement of fifty or sixty pounds, you would automatically be cutting out some portion of the potential workforce. So you have to be certain that the job actually does require that, or can that weight be broken down into smaller chunks, to potentially be picked up by more of the workforce. So the mistakes become costly when the job description can actually become a basis for an employment lawsuit. If it can be proven that you're discriminating in your hiring practices or your promotional practices, and the job description is the basis of that, you can be liable for significant amounts.NOLO: There are some cases where a job description calls for specific characteristics, that relate to sex, religion, or other protected characteristics, for example if you're hiring a female matron at a women's prison. So how do you know when a protected characteristic is essential to the job description?MARGIE MADER-CLARK: Well, a little background on the concept of protected characteristics. They actually have a name in the employment law world, they're called Bona Fide Occupational Qualifications, or BFOQs. So you have to be able to prove that nobody else can reasonably do the job without having that particular Bona Fide Occupational Qualification. In these particular examples, they're sort of obvious, which makes them all the more defensible. You wouldn't have a woman as a Catholic priest, and you probably wouldn't have a man as a warden at a female prison. If they're not obvious and defensible, they probably are not Bona Fide Occupational Qualifications. For example, the weight-lifting requirement that I gave earlier, that could be done by a man or a woman of any race or religion. That wouldn't be considered a BFOQ.NOLO: In your book, you warn against job descriptions that include a statement like, "This position is a stepping-stone for promotion," or, "If you can meet these challenges, you'll have a bright future." What's wrong with providing some encouragement to a potential employee, and how else can a company attract ambitious people?MARGIE MADER-CLARK: We[...]



Do You Have to Consent to Roadside Sobriety Tests?

2006-12-10T15:59:14.528-08:00

This week we’re going to discuss DUIs – the laws and procedures that are triggered when someone is arrested for driving under the influence of alcohol or drugs. We’re going to speak with Aaron Bortel, a San Francisco attorney and expert on DUI law. Aaron is also a member of Nolo’s Lawyer Directory. Most people call it “drunk driving” and in some states it’s referred to as “Driving While Intoxicated” or “DWI,” but you don’t have to be intoxicated or “drunk” to be convicted of this crime. For that reason, the offense we’re discussing is commonly known as “Driving Under the Influence” or ‘DUI.’In most states, a first time DUI offense will usually result in some jail time, a large fine – usually more than $1,000 -- and a driver’s license suspension. The maximum sentence for a first offense is usually six months or a year in jail and that varies from state to state. Second and third offenses often result in jail sentences of several months to a year. In California, A DUI conviction counts as a second offense or third offense if the prior convictions occurred within ten years. This is what is known within the world of DUIs as priorability – whether an offense counts as prior offense.In addition to the penalties I mentioned, insurance companies often cancel (or drastically raise rates) for drivers convicted of a DUI. And a DUI charge stays on a driving record for many years.The procedure for enforcing DUI laws usually begins when a police officer observes someone driving improperly, perhaps weaving in out of lanes of traffic, or speeding. After stopping the car, the officer observes the driver, for indications of alcohol or drug impairment, for example, slurred speech, red eyes, dilated pupils, flushed face, a strong alcoholic beverage odor on the driver’s breath, or unsteadiness after the driver gets out of the car. The officer may request a roadside coordination test – also known as a field sobriety test which may involve the driver balancing or walking.If the officer reasonably suspects that driver is under the influence, the driver will be arrested. And after the arrest, comes a crucial test -- either a breath or a blood test.We asked DUI attorney Aaron Bortel whether it’s ever in a driver’s best interest to refuse to take this test.AARON BORTEL: It‘s a tough one to defend, let’s put it that way. You’re better off not refusing the test in most cases. NOLO: What’s the legal basis for requiring this test?AARON BORTEL: When we sign up to get our license, we sign something where we impliedly consent to take a chemical test after being arrested for a DUI. The test that you’re required to do is the evidential test that’s either a blood test or a breath test which is usually at the station. The officer is required to tell you if you refuse to do the blood test or evidential breath test that you will lose your license for a year.After the arrest, the driver’s license is taken away and usually, the driver’s car is impounded. The police officer will also be required to send a form to the DMV notifying them of the arrest.A decision must be made as to what charges will be brought against the driver. In California, for example, driving under the influence can lead to two misdemeanor charges -- Driving Under the Influence or Driving While Blood Alcohol is 0.08% or higher. But the driver can also be charged with Felony DUI, a very serious charge that can send the driver to prison for over a year and possibly up to five years.NOLO: We asked Aaron Bortel for an explanation of Felony DUI.AARON BORTEL: If you add on an injury to another you’[...]



What's the Best Way to Screen Tenants?

2006-12-10T15:50:32.874-08:00

We’re speaking with attorney Janet Portman, an expert on landlord tenant law and the author of, “Every Landlord’s Guide to Finding Great Tenants.”NOLO: Janet, your book is geared to finding and screening great tenants. But what about a landlord who has just purchased your book, and already has tenants in the building? Can a landlord go back now and run a screening effort on existing tenants?JANET PORTMAN: Great question, and the answer is no. Here’s why: in order to request a credit report, a first level screening tool, you have to have a valid business reason. But if you’ve already rented to someone, especially someone with a lease, you don’t have that reason anymore. If you want to check criminal background, a second level screening tool, you need your tenant’s permission, but existing tenants aren’t likely to play along. The most you can hope for with your building full of tenants is that the prior owner did some minimal screening, and that the bad apples are either near the end of their lease, or are renting on a month-to-month basis. You can terminate their rental agreements with requisite notice – usually thirty days. If you have a really bad tenant, regardless of the length of his lease, you can always terminate for cause.NOLO: You mentioned criminal background checks. If you were to explain the rules to someone from another country, they might be mystified. For example, the California Apartment Association advices their members not to do a Megan’s Law search, and not only that, but refusing to rent to an ex-con might result in a lawsuit. How did it come to be that landlords have to take a “don’t ask, don’t tell” approach when it comes to ex-convicts?JANET PORTMAN: This is one of the most interesting issues in the landlord tenant world today. Here’s the deal: California and New Jersey and Madison, Wisconsin, passed laws that prohibit employers and landlords from using Megan’s Law databases to deny housing or employment, and there’s hefty penalties if landlords break the law. Maybe these legislators realize that if ex-cons could be denied a job or a place to live once an employer or landlord saw their name on the list, they would become outcasts, and eventually go underground, defeating the whole purpose of the registration process. But landlords in these states, knowing that they are charged with maintaining a safe place for residents to live, feel that they should be able to use the database to weed out applicants who might commit crimes. So, there’s the problem. Fortunately, there’s a way to find out about a person’s unsavory past by using other tools besides the Megan’s Law lists.NOLO: Janet, just so we’re clear, is it okay to turn down tenants who are pet owners solely on the breed of their dog? And can you do other things, like ask for special deposits because of the pet?JANET PORTMAN: Landlords can prohibit all pets, or some pets, and they can also say, “No dogs over a certain weight, no un-spayed or non-neutered dogs,” and yes, “No pit bulls, Dobermans, or any other breed.” The only caveat here is when the tenant says, “I am disabled, and this is my service or companion dog or animal.” But let’s not get hung up on this exception. It’s not that easy to satisfy the legal definition of being disabled, so landlords aren’t likely to find hoards of tenants successfully circumventing their no-pit bulls policy by using this exception. Now, as to charging more if a tenant wants to bring a pet, most of the time, the pet deposit that a landlord wants to set should be included within the security dep[...]



Do You Need a Lawyer?

2006-12-10T15:47:12.720-08:00

Thirty-five years ago, Jake Warner and Ed Sherman kick-started the legal self-help movement by publishing Nolo’s first do-it-yourself legal guides. This week, we’re speaking with Jake Warner, one of the founders of Nolo, and the author of several books, including “Everybody’s Guide to Small Claims Court.” Today, we’re going to talk about a question that’s directly related to Nolo’s mission: when do you need a lawyer, and when can you handle something yourself?NOLO: Jake, last year Americans paid their lawyers over fifty billion dollars for personal legal services. Are we paying too much for legal services?JAKE WARNER: Absolutely. We’re paying $300 an hour on average, for a lot of services that are probably worth $50 or $100 per hour, and one of the reasons is that lawyers have a cartel, which basically says that lawyers own the law. They don’t just own some of the law, or a little bit of the law, they own all the law, so even if you have the simplest kind of procedure, something that is way simpler than doing your own income tax, not much harder than filling out a driver’s license application, for example, doing a name change. 99.5% of the name changes are approved; it’s filling out a few pieces of paper, taking it to a court clerk, and in a few states you have to go before the judge… that is going to be charged at $300 an hour, the same as if you are handling a complicated business transaction, or doing a criminal defense matter, or all sorts of other things where maybe lawyers are worth more. The truth is, by simplification, by making forms available at clerks’ offices, by providing some reasonable help, by a lot more electronics, we ought to be able to do a lot of these things on a versa teller-like approach, or a bank ATM-like approach, I guess I should say. Yeah, we’re paying way too much.NOLO: Nolo is definitely not anti-lawyer.JAKE WARNER: Well, Nolo was never anti-lawyer; lawyers were anti-Nolo.NOLO: When we talk about non-lawyers representing themselves, there’s the viewpoint of the public, and the viewpoint of the legal profession. You were around when the legal self-help movement started in the early seventies; have the viewpoints of the public and the legal profession changed?JAKE WARNER: Yeah, no question, and we’ve made a lot of progress. When we started Nolo in 1971, the attitude really was, lawyers own the law, they own every bit of the law, and no one else can do it, so there were absolutely no forms available for the simplest kind of procedure. Court rooms were very hostile; if you went into a court clerk’s office and asked the simplest question, “How do I fill out line one on this form?” they’d say, “That’s practicing law without a license; I’m sorry, you have to go get a lawyer.” So, we have come a long way in the sense of the legal profession, the consumer movement, a whole lot of forces in society have opened up the system to quite an extent, so it’s a lot easier now for a non-lawyer to do simple legal procedures. Does that mean it’s as easy as it should be? No, we’ve maybe gone halfway in the more progressive states, and not that far in the others, but I think we’re on the right track, and so, Nolo is now much more working with people to solve problems. Sometimes that involves lawyers, sometimes it doesn’t, you can do an all-self-help approach in one area, you need a little legal advice in others, and hey, if you’re charged with murder-one, you probably ought to turn the whole thing over to a lawyer; it’s a continuum.NOLO: One issue that’s addressed i[...]



What is Collaborative Divorce?

2006-12-10T15:44:48.715-08:00

We’re speaking with attorney Katherine E. Stoner, whose legal practice focuses primarily on family law and mediation. We’re talking to her about her new book, “Divorce without Court: A Guide to Mediation and Collaborative Divorce.”NOLO: Let’s start with the basics: what is collaborative divorce, and what’s the difference between it and divorce mediation?KATHERINE E. STONER: Well, both are ways for divorcing couples to settle without a courtroom fight. In mediation, the spouses work with a neutral person who helps them make decisions together; they may or may not have lawyers actively participating or consulting with them. In collaboration, the divorcing spouses hire lawyers to work with them and meet with them in what’s called “four-way meetings,” and everyone works together towards a settlement. They may also hire other professionals – therapists, financial experts – to help them, but they do everything collaboratively and cooperatively, and they sign an agreement that the lawyers and the other professionals have to withdraw if they don’t reach an agreement.NOLO: Okay, the idea of divorce and collaboration seems almost like an oxymoron, so how can a couple that’s fallen out of romance, that commonly are very angry or bitter with each other, be expected to collaborate on a divorce?KATHERINE E. STONER: Yeah, that’s a good question. Actually there are lots of reasons why they might mediate or collaborate. One, and one that’s sort of a primary concern to people when they come in, is that it will save them quite a bit of money. There are statistics that show that the average contested courtroom divorce will cost $50,000 or more, if you’re in a major urban area, and collaborative divorce, even with two attorneys involved every step of the way, is going to be considerably less than that, and mediation where the lawyers may interface even less will be of course even less expensive than that.NOLO: There’s another element to this of course, and that’s the attorneys, and if you’ve seen the film Intolerable Cruelty, the tag line there was, “engage the enemy,” which is really the common view of divorce lawyers, sort of ruthless adversarial individuals who place their clients’ interests above everything else, so what’s the response been from the family bar to this sort of idea? Have they been open to it, or…?KATHERINE E. STONER: Yeah, in fact, I think the ruthless litigator is really the exception rather than the rule. In my experience, most lawyers who do family law all the time see the damage that’s done to people financially and emotionally, and to their children, and really want to do something different, and so the response of the bar has actually been pretty tremendous, and I think that’s one reason why mediation and collaborative is kind of taking off these days.NOLO: You said something interesting in the book that I liked; you said that couples who are divorcing don’t need alternative dispute resolution, because they don’t have a dispute, and I think most of us think, “Well, gee, is that correct? A divorcing couple seems to have so many disputes,” so could you just explain and give us a background on how you came to that conclusion?KATHERINE E. STONER: Yeah, some people are able to make all the decisions that have to be made themselves. Maybe they do it at the kitchen table, maybe they do it over a period of time, but they don’t really need help in making decisions. They may need help in the paperwork of getting divorced, because they’re not going to be [...]



Can You Patent Your Invention? Part Two

2006-12-10T15:42:53.060-08:00

We’re speaking with patent attorney David Pressman, the author of the world’s best-selling guide, “Patent it Yourself,” as well as the co-author of other Nolo books, including, “Patent Pending in 24 Hours,” “The Inventor’s Notebook,” “How to Make Patent Drawings,” and “Nolo’s Patent’s for Beginners.” This is the second installment of a two-part interview with David.NOLO: David, since you can never get a patent just by filing a provisional patent application, what good is a provisional patent application?DAVID PRESSMAN: Well, you’re exactly right; a provisional patent application doesn’t give you a right to get anything. It’s actually a misnomer, because it’s not an application for anything; it’s really just a way of recording your invention, so that later you can go back to this date when you filed the provisional application, and use that date to antedate references that the patent office cites against you, or you can win an interference if someone invents the same invention and there’s a proceeding in the patent office to determine who was first. Another advantage of the provisional is that you can call your application “patent pending,” but remember – it’s very important to remember – that within a year, after you file the provisional, you have to file a regular patent application, or else the provisional will be lost and discarded forever.NOLO: A U.S. patent can only be used to stop infringements within the United States, so when is it worthwhile to file for foreign patents?DAVID PRESSMAN: Foreign patent filing is extremely expensive, because the value of the dollar has gone down, and the foreign patent agents charge quite a bit of money. So, if you have a very valuable invention, and you can afford to pay for it, if someone else is willing to pay for it such as a licensee or someone else who buys a part of your invention, then you can foreign file if your invention has a market overseas – in other words, if your invention has a market in Europe, then you can file in the European patent office, but it costs about six or seven thousand dollars to file there, or in Japan it costs about the same. You can file in Canada for a couple thousand dollars, but in any of these countries there are ongoing substantial expenses, so you have to be prepared for that, and you have to be sure that your invention has enough potential there to make it worthwhile, and you’ll get much more back then you paid in.NOLO: You hear a lot about business method patents, perhaps the most famous of which is the Amazon one-click patent. What are business method patents, and are they here to stay?DAVID PRESSMAN: Well, I’ll give you a little bit of history first. The business method was always never patentable in the patent office. Whenever we got a patent application that was even remotely connected to a business method, as an examiner we’ve always rejected as non-statutory because it was always the rule in the patent office that business methods were non-statutory subject matter, but this was challenged by an innovative person, and they got patents on business methods, and now it’s very, very common, and they seem to be hear to stay. Recently I had an application pending on a pure business method that was a way of financing, and the patent office rejected it because it didn’t use technology, it didn’t use a computer, and I had to appeal, and while I was waiting for the appeal to be decided, they changed their mind and there was another decision, an[...]



Can You Patent Your Invention? Part One

2006-12-10T15:40:52.475-08:00

We’re speaking with patent attorney David Pressman, the author of the world’s best-selling guide, “Patent it Yourself,” as well as the co-author of other Nolo books, including, “Patent Pending in 24 Hours,” “The Inventor’s Notebook,” “How to Make Patent Drawings,” and “Nolo’s Patent’s for Beginners.” This is the first installment of a two-part interview with David.NOLO: David, we’re all familiar with stories about great inventors from the past who came up with great ideas, patented them, and made millions of dollars. But nowadays it seems like large corporations and universities dominate the world of patents. Is it still possible for an independent inventor to come up with something innovative and make money off of it?DAVID PRESSMAN: Definitely. I think that about 30% of all patents are now still issued to inventors who have no assignee; that means they haven’t assigned their invention to a corporation and therefore they’re small inventors. Most small businesses are still individually-owned, and even one of Nolo’s authors, Jack Low, started a very big business where he’s very successful now, on his vertical mouse, by himself. I have several clients, one which makes insulating cups, another which makes shower mirrors, and they’re both individual inventors who have started businesses on their own.NOLO: Another change since Thomas Alva Edison’s day has been that the patent system has become more complicated and more complex, yet you still maintain that a diligent inventor can prepare his or her own patent application. Tell us why you believe that inventors can prepare their own applications.DAVID PRESSMAN: Yes, because the inventing process is still the same, and it’s actually much harder than the patent application filing and preparation process when you look at all the work involved. To get a patent you actually have to do some new things which inventors are not familiar with, but basically a patent application is just a detailed explanation of how to make and use the invention in conjunction with drawings, and then there’s a few forms and rules you have to follow, but I lay them all out in a checklist, and I think anybody who is smart enough to invent, to create something new, should be easily able to follow the instructions. You do have to be able to write a detailed description of your invention in conjunction with drawings, and frankly, not everybody can do that, but if you can do that, I think the rest is duck soup.NOLO: David, you’re familiar with the stories behind many famous inventors. Who are your favorites?DAVID PRESSMAN: Well, my favorite inventor happens to be a person who had his lab and made his great inventions on the same street that I live on in San Francisco, Green Street, and his name is Philo T. Farnsworth, and if anybody is not familiar with him, he invented television. He was a genius, a farm boy from Iowa, and he just really understood how the electrons work, and how the cathode ray tube works, and made television work. Of course, it was a little before its time, but his widow did collect a lot of money from his royalties. Two other famous inventors that I like are Edwin Howard Armstrong, he was another electronic genius, they called him the man of high fidelity. He invented the automatic game control, a very important circuit in electronics, and continuous wave transmission, and also FM. Finally, my third favorite inventor is Dr. Wallace Caruthers of DuPont, who after working and striv[...]



What Are Your Legal Rights as a Shopper?

2006-12-10T15:35:35.435-08:00

In this episode we’ll discuss legal remedies for unhappy shoppers. A lot of our material is derived from, “Nolo’s Encyclopedia of Everyday Law,” written by Shae Irving, and the Nolo editors. Okay, let’s start with a typical consumer question:QUESTION: I don’t like a lamp that I purchased. There’s nothing wrong with it; I just don’t like it. Do I have the right to a cash refund?”ANSWER: Many merchants will refund your money or reverse your credit card charges, but they’re doing it because it’s their policy, not the law. Nolo, for example, the sponsor of this podcast, has a “no questions asked” return policy – if you don’t like a book, you can return it for a cash refund. But a seller is not legally required to make a cash refund. A seller may be required to make an exchange for merchandise that is defective or does not perform as advertised. These are requirements that occur because of laws about warranties – implied and expressed warranties. We’ll talk about those in a few minutes. But it’s important to remember that a merchant doesn’t have to make a cash refund to a consumer. There are rules in four states however:In California, sellers who do not allow a full cash or credit refund within seven days of purchase have to post the store’s refund credit policy. If the seller fails to post the policy, you can return the goods for a full refund within thirty days of your purchase.In Florida, if the seller has a no-refund policy, such a statement must be posted in a store. If a no-refund policy isn’t posted, you may return unused goods in the original packaging within seven days for a full refund.In New York, sellers with a no-refund policy have to post it. If a seller does not post the policy, you’re entitled to a choice of cash or credit refund within twenty days if goods are not used or damaged.In Virginia, sellers must post the refund or exchange policies, unless they give a full cash refund or a full credit within twenty days after purchase.QUESTION: What does a warranty mean? Does every new product come with a warranty?”ANSWER: The main thing to remember about warranties is that they’re based on common sense. A contract for a sale is based on a principle that merchandise will perform either as commonly expected – for example, that a lamp will work, or that a product will be sold as advertised. For example, if it says that batteries are included, then you expect that batteries will be included. These guarantees are part of the sale. So, a warranty is just an assurance about the quality or performance of the product or service. The most common warranty is the implied warranty of merchant’s ability. It’s a part of every consumer transaction that you will make. What that means is that a product or service will perform as expected for its basic purpose. So, if you buy a juicer that can’t perform it’s basic purpose, that is, it can’t make juice, then the seller broke the implied warranty, and the seller owes you a replacement juicer that will make juice. For used items, there’s also a warranty of merchant ability, and that’s a promise that the product will work as expected given its age and condition. So, for example, a ten-year-old used juicer may not look or work as well as a new one considering its condition and age. There’s a second implied warranty, and that’s the implied warranty of fitness. That means that if you and the seller communicated a specific or an unusua[...]



What Does a Dog Owner Need to Know About the Law?

2006-12-10T15:35:52.843-08:00

We’re speaking with Mary Randolph, the author of “Every Dog’s Legal Guide: A Must-Have Book for Your Owner.”NOLO: Mary, considering that dogs have been around for thousands of years, why is it necessary to license them, and what’s going to happen to a dog owner who doesn’t license a dog?MARY RANDOLPH: Well, the theory behind licensing is that cities want to keep track of dogs; they want to know how many dogs they have, they want to get a little money from the dog owners to go towards the cost that a city incurs when it’s taking care of the dog population… they have to have animal control officers, they have noise ordinances… so, that’s the idea behind it; it’s just that having a dog is a bit of a privilege, it’s not just a right, and you have to pay a little fee for it. But no one comes around, obviously, knocking on doors, checking to see if your dog has a tag… you can get into trouble if your dog gets picked up, if your dog is running loose and the animal control people pick it up, you’re much more likely to get the dog back quickly and safely if you’ve got a license for the dog, because they can trace you right away, and they can contact you. If the dog doesn’t have an identifying tag, you might not get the dog back. In some places, they have rules that they keep licensed dogs longer on the theory that they are not strays; they have an owner out there looking for them. They also use licenses to keep track of rabies vaccinations, because you’re required to have a rabies vaccination, and in some places, some other vaccinations as well, so that usually goes along with the licensing requirement.NOLO: In your book, you provided the interesting story of Toby, a dog who ran wild and whose owner was fined $500 for that, and later appealed the case to the California Court of Appeal. Two questions: in most places, dogs can’t run free, but how zealous can animal control enforcement people be when chasing dogs and what can they do once they’ve gotten hold of a dog? And, I guess, another question might be, what could motivate a dog owner to pay thousands of dollars in lawyer fees to appeal a $500 fine?MARY RANDOLPH: Well, in dog cases, there’s always something going on more than money; people are very emotional attached to their dogs. This must have been a big issue; I don’t know the particulars of this case, but Toby had a rap sheet – Toby had been caught fifteen times I think, by the animal control people, so this was a dog who was obviously let free all the time, and the owners were flouting the law, but how this case came about is because the animal control folks were chasing this dog, the dog ran home, ran in through an empty door, jumped on the bed presumably, went right in the bedroom, and the police came because the door was open, and they thought perhaps there had been a burglary. The animal control people followed the dog into the house and impounded it, so the owners were understandably upset that the people had gone into their house and taken the dog who was not running loose at that moment, and carted it off and locked it up. So, that is beyond the pale – animal control folks are not supposed to come into your house and take the dog. Otherwise, they can, if the dog is running at large, they’re pretty free to track it down and lock it up. It’s a public safety issue.NOLO: Mary, if there’s a no-pet clause in a lease, what if the landlord permits a dog i[...]



What are Current Gay and Lesbian Legal Issues?

2006-12-10T15:29:33.919-08:00

Hello. We’re speaking with Attorney Emily Doskow, an expert on Lesbian and Gay legal rights, and the editor of, “A Legal Guide for Lesbian and Gay Couples,” from Nolo.NOLO: Emily, there’s a great movie called “Normal,” about a rural couple that’s been married for twenty-five years. Then, one day, the husband announces he plans to change his sex. Legally, what happens in situations like this, when a married couple becomes a same-sex couple? Is the marriage over?EMILY DOSKOW: The marriage isn’t legally over if they were opposite sex when they got married; their marriage will still be valid after one partner transitions. It’s different if the partners are same-sex, and then one partner transitions so they become opposite sex, and the courts are split on that about whether a marriage would be valid that was done after a transition. Some courts say that the sex that the person was at birth is the sex that they stay, and so they’re still the same-sex couple that can’t have a valid marriage, and some states say that if they become opposite sex then their marriage is valid.NOLO: In your book, there’s a discussion about a debate among gay activists as to whether the pursuit of marriage rights is a proper goal for same-sex couples. Considering all the rights that are denied same-sex couples, that is, compared to married couples, what’s the thinking behind opposing marriage rights for same-sex couples?EMILY DOSKOW: I think it comes from a bunch of different places. One is a political stance that says, “Nobody should get married; marriage is an institution of the state that’s oppressive, and everybody should be able to define their legal and financial relationships however they want to.” Another is that it’s just too much too soon, and people aren’t ready for it, and it causes a backlash, and a lot of negative, you know, all of these anti-same-sex marriage laws that we’re seeing everywhere. Another is that it sort of closes doors to alternative types of relationships by mainstream, I mean the LGBT community. So, for example, in situations where a Lesbian couple asks a man to be a sperm donor, they want all three of them to be parents, and that’s something that has happened in the past, so that a child can have two female parents, one male parent, and courts have actually granted adoptions where it ends up that a child has three legal parents… that’s getting more and more uncommon because the structure of domestic partnerships, marriage, civil unions, all of that, is so much like marriage that courts are sort of becoming more reluctant to do things that are sort of outside of that mainstream, so that’s another argument against it.NOLO: Five states have domestic partner programs: Maine, New Jersey, Vermont, Hawaii, and California. Which offers the best legal rights?EMILY DOSKOW: Well, Connecticut also is on that list; there are six now. And, of course, Massachusetts offers same-sex marriage, which is the best among them. I would say of the others, California, Connecticut, Vermont, and Maine all offer benefits that are equivalent to marriage on the state level; none of them are recognized by federal government.NOLO: Let’s talk about living together contracts; there’s one on the CD in the Nolo book. What are the minimum requirements for making a living together contract, and are there times when a couple should get a lawyer to do one, rather t[...]