We Practice Law for Your Peace of Mind

Protecting Your Business’s Name

Author: Leonard London

December 11th, 2014

Many people believe that simply by incorporating a corporation or forming a limited liability company they will be entitled to exclusive use of the name.  This is not the case and another Corporation or LLC can be formed with a similar name as long as it is distinguished. A geographical limitation will often suffice. For example the Secretary of State would probably approve Rochester Acme Corporation even though Acme Corporation had been previously filed.

If your name is used in connection with goods or services the corporate or LLC name provides no protection against others using the name. For maximum protection a trademark or service mark registration should be obtained. If your goods and services are sold exclusively in New York you are eligible to apply for a New York registration which will offer protection against other New York users and establish your date of first usage. If your goods and services are sold in interstate or international commerce, including sales to Canada, you would be entitled to register your mark with the United States Trademark Office and that will provide additional protection.

What’s In A Name? The distinction between separate and marital property

December 5th, 2014

Absent a prenuptial agreement to the contrary, everything accumulated during a marriage, with the exception of gifts from third parties, inheritances and personal injury awards, are considered marital property; title is not controlling.   This includes all income from employment received during the marriage.  Therefore, placing these monies into an account in your individual name will result in that account being considered marital property in the event of dissolution of the marriage.

This is a common misconception. Although many people know that inheritances or gifts received from third parties are considered marital property, a common mistake that people make is placing those funds into a “marital account”.  For example, during the marriage, the wife receives an inheritance of $20,000 from her father’s estate.  She places the funds into her individual savings account, which she has funded in the past with a small portion of her income, to pay for small items, including gifts for her Husband. Thereafter, she continues to fund and withdraw from the account in the same manner as she had throughout the marriage.   Unfortunately for the wife, in the event of termination of the marriage, her husband will have a strong argument that the $20,000 inheritance should be treated as marital property.  This is for two reasons: she placed the money into a “marital account” and she also continued to fund the account with marital monies.  When separate property is “commingled” with marital property, it can lose its separate property character and generally, will be considered marital property in the event of a divorce.

Therefore in the event that one party receives an inheritance or gift from a third-party or receives a personal injury award, that spouse should open and deposit the funds into a new account. Thereafter, no additional funds should be deposited into that account. Otherwise that separate property could lose its separate character.

Similarly, in the event that either spouse enters the marriage with premarital and therefore, separate property assets and a prenuptial agreement has not been executed, the titled spouse should take similar steps to protect those separate, premarital assets.  Keeping the assets in their individual name and not “comingling” them with marital assets or marital funds will help protect their separate character.

Another important distinction is that, while gifts from third parties received during the marriage will be considered separate property, gifts from the other spouse received during the marriage are considered marital property.   For example, if the wife purchases a new car for her Husband for his birthday using monies she received and set aside from her income and places the vehicle in the husband’s name, that vehicle will be considered marital property subject to equitable distribution.

New York is an equitable distribution state, which means that, in the event of a termination of the marriage, assets will be distributed equitably and not necessarily equally. For instance, the titled spouse of a business or a degree acquired during the marriage will generally be entitled to retain more than 50% of the overall value of that asset. The non titled spouse’s direct and indirect efforts as they relate to those assets will determine the non titled spouse’s interest during equitable distribution.

No one enters into a marriage with the intention of ending it and hopefully, most couples feel the same way for many years into their marriage.  However, everyone must recognize that people, things and people can change.  Therefore, understanding the law and your rights is important in the event that things do.

Commencement of Divorce Action

December 3rd, 2014

In New York State, an action for divorce is started by filing a summons and complaint in the office of the county in which either party resides.  The summons and complaint seek to alter the marital status of the parties and to have the Court determine appropriate ancillary relief, such as custody of and access to children, support for children, support for a spouse and the equitable distribution of property and debt.

The date on which a summons/complaint is filed (referred to as the “commencement date”) is important in New York because it establishes the earliest date from which a future order of support may be made retroactive.  It also provides the official end date of the accumulation of marital assets and marital debt.  Generally speaking, the date that an action for divorce is commenced is the date that is used to establish the value of marital property, such as the balance in a deferred asset like a retirement account.  Future contributions to the retirement account made by a participating spouse and/or his/her employer after the date of commencement are the separate property of that participating spouse and are not factored into a division of that account.

There are certain exceptions to the use of the commencement date as the valuation date of a marital asset, and the Court may, use a different valuation date such as the date of trial where appropriate.

New York state is an equitable distribution state which means that property and debt is divided fairly between the parties, not necessarily equally.  In shorter term marriages, a division of the marital estate may more closely coincide with each party’s income to the total income of the couple.  In longer term marriages, a division of the majority of marital assets will be equal between the parties.  This is particularly true when conventional assets, like bank accounts and investment accounts are divided.

However, when non-conventional assets are divided, like the value of a business created during the marriage, Courts are more likely to award the party who owns and operates the business with a larger share than 50% share of the asset.

One of the most fundamental tasks which a party in a divorce action will accomplish is the creation of a sworn statement of net worth, which identifies his/her sources of income, customary expenses, assets both marital and separate (meaning not created by marital efforts, like a gift from someone other than the spouse) in nature and debt obligations.  This document (coupled with underlying documentation) is the basis for the division of the marital estate and the awarding of support, if appropriate.

Once all of the information is gathered, then the parties through counsel can have meaningful discussions as to a resolution of the issues.  It is not uncommon for attorneys to rely upon additional  mechanisms for gathering information, such as the use of subpoenas, examinations before trial and the like.  The goal is the same – to put a party in a position where he or she feels that they have all of the information necessary to enter into a voluntary and knowing agreement; or, in the alternative, to advance their position at trial before a trial judge.

One of the most frequently asked questions is “how long will this take?”   And the answer is closely connected to how quickly all of the information can be gathered and digested and how quickly are the parties able to reconcile their positions.  When, for whatever reason, an issue cannot be resolved by the parties, a trial date will be set and a trier of fact (judge or court attorney/referee) will make a determination based upon the evidence and the law.

Prenups: No longer just for the rich and famous

Author: Robin Friedman

November 29th, 2014

Prenuptial agreements used to be only for celebrities, but in the last few years they have become dramatically more common in the U.S., and now it’s quite ordinary for middle-class couples to ask for them

There’s no one single reason for the change.  Rather, a number of factors are working together to make prenups more acceptable including:

  •  The recession.  Many people have seen the value of their homes, pensions and investments shrink dramatically, and they are concerned about protecting what they have left.  In addition, a lot of people want to shield themselves from debts brought to a marriage by the other spouse.
  • Women are more likely to bring substantial assets to a marriage.  Years ago, the vast majority of prenups were initiated by men, but today it’s increasingly common for women to ask for a prenup.
  • A growing number of people are entering into a second marriage (or third or fourth marriages), and they want to protect children from prior relationships.
  • Many people today have memories of bitter divorce battles between their own parents, and they want to prevent that from happening to them.
  • The social stigma of prenups is far less than it used to be, as more and more people view them as a straightforward financial planning device.
  • At the same time, the law involving prenups has become clearer, so people can enter into them with more certainty.

Prenups can be a valuable technique for sheltering assets, avoiding expensive divorce battles, and protecting children.  However, it’s important to remember that signing a prenup doesn’t solve every problem Even if you sign a prenup, you have to remember to take certain actions (and avoid certain actions) during the marriage in order to preserve the validity of the agreement.

For instance, even if a prenup says that your pension or 401 (k) plan will remain separate, your spouse must generally still sign a waiver after the marriage takes place in order to satisfy the requirements of federal pension law.  If your spouse doesn’t sign the waiver, the federal law will override your prenup, and your spouse may be entitled to a share of your pension.

Also, suppose you have an investment account and your prenup says that it will remain your separate property.  You’ll want to be careful not to add your spouse’s name to the account, file joint tax statements that include the account, or use joint assets to pay taxes relevant to the account.  Each of these things could potentially undermine the agreement by suggesting that you have made the account joint property.

If you have any questions about prenuptial agreements, we’d be happy to help you.

A Road Map For Choosing The Right Attorney

Author: Robin Friedman

November 27th, 2014

The divorce process is stressful, costly and highly personal.  Therefore, it is crucial that you hire the right attorney to help you.  When considering what attorney to hire you should consider the following:

  1. Does the attorney care about your case? Your attorney should appreciate that the outcome of your case is going to make a difference, for better, or worse, in your life, and the lives of those you love.
  2. Is the attorney willing to tell you things that you do not want to hear? Some attorneys will only tell a potential client what they want to hear.  They do this because they do not want potential business walking out the door.  The problem is with hiring an attorney who is not willing to give you bad news is that it can result in thousands of dollars being spent fighting an unwinnable battle.
  3. Are you able to communicate effectively with the attorney? Divorces are stressful.  Therefore, it is crucial that you feel comfortable with and are able to communicate effectively with.
  4. Is the attorney you are meeting with the attorney you will be working with? Confirm that the attorney you meet with is the attorney who will be representing you.
  5. What do they charge? Remember you get what you pay for and what you are fighting for is important.  Underpriced attorneys will not give your case the level of attention, detail and service that you need.  Family law attorneys typically charge between $250.00 and $350.00 per hour.
  6. How much experience does the attorney that will be working on your case have in family law? It is important that you hire an attorney who has substantial experience in family law.  The fact that the attorney has practiced law for a long time does not necessarily mean they are a good family law attorney.  It is difficult for an attorney to be highly effective in more than one area of law.  You best bet is to find an attorney that practices exclusively in the area of family law.

If you have questions regarding divorce, the family law team at HoganWillig is available to help you through the process.  Call us at 636-7600.

Bankruptcy and Your Credit Score

Author: Robin Friedman

November 11th, 2014

For many people considering bankruptcy, the process can appear foreign and overwhelming. While it offers the ability for consumers to discharge debts and obtain a financial fresh start, it does affect consumers in other ways. One of the most common concerns we hear from clients exploring their bankruptcy options is how it will affect their credit.

There are a lot of myths surrounding bankruptcy, especially in regard to how it affects credit. Contrary to what you may have heard, filing bankruptcy does not permanently ruin credit. Although a bankruptcy filing will be visible on credit reports, the effects are temporary and in no way ruinous. Typically, Chapter 7 bankruptcy will remain on your credit for up to 10 years and Chapter 13 bankruptcy for up to 7 years.

Unlike some myths may lead you to believe, filing bankruptcy does not mean consumers will be blacklisted or barred from making purchases or obtaining loans in the future. Still, taking proactive and educated steps to rebuild one’s credit after bankruptcy is crucial.

For many consumers, bankruptcy allows them to gain control of their finances and prepare for the future. By practicing responsible credit behavior and exercising one’s financial freedom, consumers can effectively rebuild their credit score. This can be achieved by using low-limit credit cards, practicing responsible spending, and making it a priority to always make payments. In many cases, consumers are able to restore their credit to much higher scores than they had before filing bankruptcy.

At HoganWillig, our bankruptcy attorneys are passionate about guiding clients through the bankruptcy process, addressing their concerns, and helping them achieve future success. Helping clients understand how bankruptcy affects their credit score is part of this process.

If you have questions about bankruptcy and your credit, or how our firm can help, call 636-7600 for a free consultation.

Winter Preparation

Author: Krystal Chapin

November 7th, 2014

As we dive into the month of November, we realize that winter is right around the corner. Make sure you are prepared before the winter weather hits with these tips!

  • Create an emergency kit to have in your home when a storm hits. Some ideas on supplies to add are rock salt, nonperishable foods, bottled water, shovels, firewood, candles, and blankets.
  • Make a family communication plan. Your family may all not be together when a storm hits so it is important to plan how you will contact each other, how you will get back together, and what to do in case of an emergency.
  • Winterize your vehicle. Have a mechanic check your anti-freeze levels, brakes, oil, and tires. Consider investing in snow tires to help your vehicle traverse the winter months with ease. Also make sure to keep a moderately full tank of gas during the winter months. If you get stranded in your car, the engine may be your only heat source.
  • Add an emergency kit to your car. Items such as an ice scrapper, a blanket, gloves, food, water, and jumper cables will come in handy if you ever get caught in a blizzard in your car.
  • Make sure to have your chimney inspected before use. The National Fire Prevention Association recommends that fireplaces be inspected and cleaned annually. This is important because creosote, which is deposited in the chimney each time a fire is lit, is a highly flammable substance that can start a hazardous chimney fire.
  • Pet owner’s habits should change as the seasons do! Remember to take extra precautions with pets as the temperatures begin to drop. Don’t leave animals outside for extended periods of time. They get cold too and can suffer from the same cold-weather hazards as humans, such as frostbite and hypothermia.
  • With extra people around during the holidays, caution others against feeding your animals “people food”. Turkey and chicken can have small bones that can cause serious choking hazards. Chocolate is poisonous to dogs, as well as acorns and oak leaves.

Don’t let winter sneak up on you! Be prepared with these tips from your friends at HoganWillig.


We Practice Law for Your Peace of Mind