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FAQ - General Practice

General Practitioner

What are the advantages and disadvantages of having a trust instead of a will?

Trusts enable the grantor (the person creating and funding the trust) to determine who receives the money, when they receive it, and what conditions must be met. The pros and cons of trusts depend on whether it is a living trust or a testamentary trust. A living trust is set up during the grantor's life, while a testamentary trust takes effect upon the grantor's death. A living trust can be either revocable (grantor has power to revest title in himself/herself) or irrevocable (grantor did not reserve the power to revoke the trust). Note that a revocable trust generally becomes irrevocable upon the death of the grantor.

The most-touted advantage of a living trust is a substantial tax benefit to the grantor. Assets placed in an irrevocable living trust are not attributable to the grantor, although the trust itself may be taxed. Estate taxes also may be avoided. Revocable living trusts are sometimes used to help eliminate the issue that arises when certain entities (such as title insurance companies in some states) will only recognize Durable Powers of Attorney for a limited period of time after they are executed. Other advantages cover both revocable and irrevocable living trusts. If a living trust covers all of the grantor's assets, then he or she may not even need a will. Many people wish to spare their relatives from going through probate, and living trust assets are not subject to probate. Because there is no probate, survivors do not have to reveal the extent of the living trust's assets through a public filing as happens with probate. If the grantor holds real estate in more than one state, a living trust covering that property may allow survivors to avoid probate in those states. Aside from the advantages for the survivors, a living trust can help a grantor manage his or her financial affairs because a trustee takes over the administration of the trust's assets. Some people are particularly concerned about how their finances will be managed if they should fall ill. A living trust may provide peace of mind because a trustee can continue to manage the trust's funds in the event the grantor becomes mentally or physically incapacitated.

In some cases, a disadvantage of a living trust is that this trust becomes effective upon creation instead of at the grantor's death. Although a revocable living trust remains terminable at the will of the grantor, while the trust is in effect, the terms of the trust control.

The major advantage of a testamentary trust is that the grantor retains control over his or her assets. Because a testamentary trust becomes effective only upon the grantor's death, the grantor may make changes to its terms any time before death. For many people, retaining control of their property is an important goal that testamentary trusts help them achieve. Retaining control can have its disadvantages, though. If the grantor becomes incapacitated prior to death, the trustee cannot take charge of the trust assets in order to manage the grantor's finances during that time. A guardianship may be required for such incapacitated grantors. Another drawback is that survivors must probate the testamentary trust.

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How can a person change a will?

If a will is valid, it is effective until it is changed, revoked, destroyed, or invalidated by the writing of a new will. Changes or additions to an otherwise acceptable will can be most easily accomplished by adding a codicil. A codicil is a document amending the original will, with equally binding effect. Therefore, a codicil must be executed in compliance with applicable law, using the same formality as the original will. Wills cannot be changed by simply crossing out existing language or adding new provisions, because those changes do not comply with the formal requirements of will execution.

Changes to an individual's personal property may prompt a change to an existing will. To avoid frequent changes as property is acquired, a will can specify that personal property (property other than money and real estate) is to be distributed in accordance with instructions provided in a separate document. Many states provide for such a document, which can be updated as often as needed without requiring a formal codicil or revised will. A personal property instruction should be kept with the will to which it relates, and should describe each item in detail to avoid later confusion or hard feelings.

An outdated will may not achieve its original goals because its underlying assumptions have changed. Additionally, changes in probate and tax law may change the effectiveness of certain provisions. If a will is based on outmoded circumstances, for example if a chosen devisee has died or has alienated the testator, the probate period may be extended as the court determines how to construe the old provisions. Wills should be reviewed at least every two years, as well as upon major life changes such as births, deaths, marriages or divorces, and major shifts in a testator's property. Because state law governs wills, if a testator moves to another state, the will should be reviewed for compliance with the new state's laws.

As long as the testator is mentally competent, his or her will can be revoked entirely without replacement by a new document. A testator can revoke a will by intentionally destroying, obliterating, burning, or tearing the will. If the will was executed in multiple originals, or if additional copies exist, those should be treated in the same fashion. If a testator wants to minimize estate taxes and probate, he or she should make validly executed changes to a will or replace the will with a subsequent will, rather than completely revoking the will. If undertaken, however, the testator should have the revocation witnessed and recorded to avoid future contentions that the will is still valid, but has been lost.

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What is probate and how does it work?

When an individual dies owning property in his or her name, that property generally must go through probate. Probate is a legal procedure that establishes ownership of property in others. The probate system is designed to ensure the validity of a will, to give notice to all possible claimants of property and to resolve ownership disputes and rights. Probate courts also distribute property not covered by a will (intestate estates) according to legal defaults. Some property does not require probate to change hands: joint tenancy property and contractual arrangements such as insurance policies and retirement accounts generally go directly to the surviving joint tenant or named beneficiary without probate oversight. Probate also is not required for assets held in trust.

The probate court first establishes whether the deceased left a valid will. If so, the probate process guides the division of property in accordance with the will's provisions. If the estate is intestate or if a will is found to be invalid, the probate division applies state laws to divide up the estate. The probate court signs off on the final accounting of the distribution, thereby finalizing the transfers of ownership.

There are two levels of probate:

Informal probate covers estates that require no court supervision or adjudication due to their clear, undisputed nature and simplicity. This procedure allows the personal representative to accept full responsibility for promptly, completely, and legally probating the estate with only minimal court oversight. Typically, the personal representative can act more quickly to divide the property under this process, with the probate court giving final approval once the estate is fully distributed. Personal representatives may apply for informal probate, but should be aware of the possible legal liability for mistakes that their acceptance of the procedure involves.

Formal probate applies to more complex or contested estates, and involves court supervision of distribution. The probate court supervises the personal representative on each legal step he or she takes to administer the estate, adding substantial time to the process. The personal representative may post a bond to guarantee his or her performance and to protect the estate's creditors. The court may need to hear and resolve conflicting claims to the estate assets, or even find heirs when they are not apparent. The court scrutinizes each distribution. While this procedure takes far more time, it is indispensable when disputes and complex issues are involved.

Most personal representatives hire a lawyer to help them with at least some of their duties, even in informal probates. While making a will does not prevent the need for probate, a carefully drafted will minimizes the time a personal representative spends in court and speeds up the distribution of property to survivors.

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Learn More: Estate Planning

Planning for the future raises complicated worries and even fears about the unknown. Often, emotions run high when people contemplate the distribution of their possessions after death. However, estate planning includes more than deciding "who gets what." A good estate plan provides a sense of security and comfort that one's desires about many future contingencies will be met. Estate planning not only defines a person's wishes to be carried out after death regarding his or her estate (all the property owned), but also sets out the means for personal well being far into the future. To reach this goal, estate planning encompasses several connected legal areas and techniques.

Elder law is defined by the client rather than by specific legal distinctions. Elder law attorneys specialize in the legal issues facing older people, which may include issues almost as diverse as the entire legal spectrum. The main issues addressed, however, involve advance planning. As they age, many people become concerned about distributing their estates, establishing alternative decision makers in case of mental or physical incapacity, investigating possible long-term care needs (including the type of care and how to finance it), and otherwise ensuring a comfortable retirement. Often, people seek legal techniques for achieving these goals.

Guardianships and conservatorships are established for people who need representatives to oversee their own personal affairs or finances. A child or a person incapacitated by health problems may come under the care of a legal guardian or conservator. This relationship is often established by court order when a child loses a caregiver or an adult becomes unable to deal with personal affairs, but in some instances a guardian may be elected in a will or by the individual directly concerned. Often an individual has both a guardian and a conservator, and the two must coordinate their efforts to give the protected person the best result.

Living will is the popular name for a document providing advance directives on an individual's health care preferences in case of terminal illness or permanent unconsciousness. Many people hold strong opinions about heroic measures and life-support machines, and living wills offer an opportunity to formalize their wishes. Laws on living wills vary widely from state to state, so it is important to comply with local laws to ensure one's preferences will be honored.

A power of attorney and a power of appointment allow someone to select an individual for responsibilities or benefits. A power of attorney allows a person to appoint another (called the attorney-in-fact, although the person is not required to be an attorney at law) to act as his or her agent in specified situations. For example, an elderly person may delegate all the powers and responsibilities of a guardian and conservator to a designated individual, using a power of attorney, so that if the person becomes incapacitated the attorney-in-fact quickly can begin making decisions. In contrast, a power of appointment is an individual's ability to designate an owner or recipient of property. For example, in a will or trust, the owner of property can appoint another to manage or distribute property; the designated person has a power of appointment to choose who receives what property from the will or trust.

Trusts include a variety of arrangements in which a property owner (the grantor) separates the benefits from the burdens of ownership and gives them to different people. The owner of a vacation cabin enjoys the ready get-away, but must pay for its upkeep; if the cabin is put in trust, the trustee manages any repairs and financial obligations for the property, while the beneficiary receives the benefit of its use. A grantor may choose a trust in order to ensure a continuing benefit to the beneficiary as opposed to making a one-time gift. Additionally, a trust may provide tax benefits to the grantor or to his or her estate.

A will is a legal document specifying how a person's property and assets should be handled after death. A testator (the person making the will) can give instructions on how the property should be divided, who should receive what portions or specific items, and even who will take care of any surviving minor children. A will can establish a trust or make gifts to charity. Without a will, the government determines how property will be distributed, and may impose a substantial tax burden on the estate. Wills must meet state legal requirements to be effective, so professional guidance is important.

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Are there any alternatives to filing bankruptcy?

Debtors who have faced obstacles to paying off their debts when due have no doubt received more than their fair share of demanding letters and phone calls, and the thought of getting rid of their debts, and thus the constant demands, through bankruptcy can be quite appealing. Before making a decision to pursue that route, which can have long-term effects on credit rating and the ability to make large purchases, like a home, debtors should consider other, less drastic alternatives.

If the debtor's financial problems are only temporary, he or she may want to ask creditors to accept lower payments or that payments are scheduled over a longer period of time. Creditors may be receptive to these ideas if the debtor has been a prompt payer in the past, or if the specter of bankruptcy is raised, since creditors know that once a bankruptcy proceeding is initiated they will probably collect only a portion of what is owed. In addition, creditors may wish to avoid the difficulties of a court proceeding to collect on the debt, which can be time-consuming and expensive.

Consumer credit counselors can also help creditors work out a repayment plan. Some of these advisors work for non-profit agencies, so they charge no fees. Many credit-counseling services charge a fee for their guidance, however, and it may not appeal to an already over-stressed debtor to add another debt to the stockpile.

If the debtor's financial troubles are long-term or if the creditors will not agree to an alternative payment plan informally, bankruptcy may be the best way for the debtor to get out from under an insurmountable debt load. Although it is not without its adverse consequences, bankruptcy can be the right option to enable debtors to make a fresh start.

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Does a bankruptcy discharge eliminate all debts?

The rules on which debts are discharged, or eliminated, are different depending on which type of bankruptcy is filed. A Chapter 13 discharge affects only those debts provided for by the plan. Additional exceptions to a Chapter 13 discharge include claims for spousal and child support; educational loans; drunk driving liabilities; criminal fines and restitution obligations; and certain long-term obligations, such as home mortgages, that extend beyond the term of the plan.

In a Chapter 7 proceeding, the following debts are not discharged:
  • Debts or creditors not listed on the schedules filed at the outset of the case;

  • Most student loans, unless repayment would cause the debtor and his or her dependents undue hardship;

  • Recent federal, state, and local taxes;

  • Child support and spousal maintenance (alimony);

  • Government-imposed restitution, fines, or penalties;

  • Court fees;

  • Debts resulting from driving while intoxicated; and

  • Debts not dischargeable in a previous bankruptcy because of the debtor's fraud.

In addition, the following debts are not discharged if the creditor objects during the case and proves that the debt fits one of these categories:

  • Debts from fraud, including certain debts for luxury goods or services incurred within sixty days before filing and certain cash advances taken within sixty days after filing;

  • Debts from willful and malicious acts;

  • Debts from embezzlement, larceny, or breach of fiduciary duty; and

  • Debts from a divorce settlement agreement or court decree, if the debtor has the ability to pay and the detriment to the recipient would be greater than the benefit to the debtor.

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How much property does the debtor have to give up in a bankruptcy proceeding?

Items that the debtor usually has to give up include:

  • Expensive musical instruments, unless the debtor is a professional musician;

  • Collections of stamps, coins, and other valuable items;

  • Family heirlooms;

  • Cash, bank accounts, stocks, bonds, and other investments;

  • A second car or truck; and

  • A second or vacation home.

Certain types of property are exempt, however, which means that the debtor can keep them. Exempt property can include:

  • Motor vehicles, up to a certain value;

  • Reasonably necessary clothing;

  • Reasonably necessary household goods and furnishings;

  • Household appliances;

  • Jewelry, up to a certain value;

  • Pensions;

  • A portion of the equity in the debtor's home;

  • Tools of the debtor's trade or profession, up to a certain value;

  • A portion of unpaid but earned wages;

  • Public benefits, including public assistance (welfare), Social Security, and unemployment compensation, accumulated in a bank account; and

  • Damages awarded for personal injury.

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Learn More: Bankruptcy Law

Bankruptcy law is primarily federal law and varies little from state to state. The United States Constitution grants to Congress the power to establish uniform bankruptcy laws throughout the United States, which ensures uniformity in how bankruptcy proceedings are conducted, encourages interstate commerce, and promotes national economic security. The individual states do, however, retain jurisdiction over certain debtor-creditor issues that are not addressed by or do not conflict with federal bankruptcy law, such as which property remains exempt from creditors' claims.

Bankruptcy law provides two basic forms of relief: (1) liquidation and (2) rehabilitation, also known as reorganization. Most bankruptcies filed in the United States involve liquidation, which is governed by Chapter 7 of the Bankruptcy Code. In a Chapter 7 liquidation case, a bankruptcy trustee collects the debtor's nonexempt property and converts it into cash. The trustee distributes the resulting fund among the creditors in a particular order of priority described in the Code. Not all creditors will receive the full amount owed through this process, and some may receive nothing. When liquidation and distribution are complete, the bankruptcy court may discharge any remaining debts of an individual debtor. If the debtor is a corporation, it ceases to exist after liquidation and distribution, and there is therefore no real reason for further discharge because the creditors cannot seek payment from an entity that no longer exists.

In a rehabilitation or reorganization, the option courts often prefer, creditors may be provided with a better opportunity to recoup what they are owed. Chapter 11 or Chapter 13 of the Bankruptcy Code governs this type of bankruptcy. Chapter 11 usually applies to individual debtors with excessive or complex debts, or to large commercial entities like corporations. Chapter 13 usually applies to individual consumers with smaller debts. (Farmers and municipalities may seek reorganization through the Code's special chapters, Chapters 12 and 9, respectively.) Reorganization provides a greater opportunity to retain assets if the debtor agrees to pay off debts according to a plan approved by the bankruptcy court. If the debtor fails to do so, however, the court may order liquidation.

Debtors must meet a means test to determine if they are financially eligible for straight Chapter 7 liquidation. In brief, if a debtor can repay out of his adjusted current monthly income $1000 each month to unsecured creditors, over a span of 60 months, he may not avail himself of Chapter 7 and must go into Chapter 13.

In most instances, the bankruptcy case is filed by the debtor, which is considered a voluntary bankruptcy. Once the debtor files the bankruptcy petition, he or she is immediately entitled to relief from creditors through the bankruptcy procedure known as the automatic stay. The automatic stay freezes all debt-collection activity and forces the creditors to allow the bankruptcy proceeding to determine how payment will be made.

Under Chapters 7 and 11, creditors, too, have the option of filing for relief against the debtor, which is known as an involuntary bankruptcy. Involuntary bankruptcies are allowed only when there are a minimum number of creditors and a minimum amount of debt. The debtor has the right to file a response, after which the court determines whether the creditors are entitled to relief. If the court dismisses the involuntary bankruptcy filing, finding that it has no merit, the creditors may have to pay the debtor's attorneys' fees, damages for any losses the debtor experienced because of the bankruptcy, and even punitive damages to punish the creditors for the frivolous or abusive filing of a petition.

Lawyers specializing in bankruptcy law can help both debtors and creditors overcome obstacles to the repayment of debt. Their expertise often extends beyond bankruptcy to include debt repayment and collection options that can circumvent the need for a bankruptcy filing. The following are just some of the areas in which bankruptcy lawyers can assist their clients.

Collections and repossession are remedies sought by creditors against debtors who have defaulted on their obligations. Collections include any technique to get the debtor to make up the remaining debt, including use of a collection agency or the courts. Creditors may also have outstanding debts legally recognized, and then enforced against a debtor's property involuntarily with garnishments, liens, or levies. Repossession of collateral is another technique used when property is pledged to secure a debt.

Commercial bankruptcy is a remedy available to businesses that are unable to pay their debts. Options include liquidation, in which many of the business's assets are sold and the proceeds are divided among the creditors, and reorganization or restructuring, in which the business continues to operate according to a plan that allows for at least partial payment to creditors.

Consumer bankruptcy is a method through which individuals may be able to get out from under insurmountable debt and make a fresh start, albeit with a negative impact on their credit ratings. As in commercial bankruptcy, there are two options: liquidate assets to pay off creditors, or file a wage-earner plan that allows the debtor to retain more assets while working to pay off his or her debts.

Creditors' rights include a full range of options available to creditors to collect unpaid debts. These rights include collection actions, repossession, foreclosure, garnishment, replevin, attachment, obtaining a court judgment, liens, and forcing the debtor into involuntary bankruptcy.

Discharge is the bankruptcy term for wiping out many of the debtor's remaining debts at the conclusion of the bankruptcy proceeding. A discharge is available to only certain debtors, however, and only certain debts are dischargeable.

Foreclosures are the actions taken when a mortgagor fails to make the required mortgage payments on time and the lender, or mortgagee, forces the sale of the property-often the debtor's home-to pay off the debt. Foreclosures can be either judicial, which requires court involvement, or pursuant to a clause in the mortgage that allows for such sales.

Garnishment is a creditor's remedy aimed not directly at the debtor but rather at a third party who owes money to the debtor or holds some of the debtor's property. The garnishment process notifies the third party that the creditor intends to apply the third party's property to satisfy the debtor's debt. Typical garnishees, as the third parties are called, include the debtor's employer and the bank in which the debtor has his or her accounts.

Reorganizations & restructuring are methods by which a bankrupt business may reorganize itself in order to keep operating and pay off creditors at least part of what it owes. This commercial bankruptcy option has many advantages over liquidation, which requires selling off many assets and after which the business ceases to exist.

Workouts are non-bankruptcy agreements between debtors and creditors in which the creditors agree to take less money than the full amount owed or accept payments over a longer period of time than originally anticipated. Workouts have the advantages of being voluntary, less complicated, and less negatively perceived than bankruptcy.

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Can a person be guilty of drunk driving if he only had one drink?

The crime of drunk driving is generally defined in two ways: (1) having a blood alcohol content above the limit set by law, or (2) driving under the influence of alcohol. To find a person guilty under the first definition, a jury must be convinced beyond a reasonable doubt that the person's blood alcohol content (BAC) exceeded a certain amount. In most states the legal limit is .08 (or 8 percent). Therefore, if it is proven that the person's BAC at the time of the incident was .08 or greater, he or she can be convicted of drunk driving, regardless of how much alcohol was actually consumed.

In contrast, the second definition does not refer to any particular BAC; it focuses on the driving behavior of the person. If the person's driving is impaired by the consumption of alcohol, he or she can be found guilty of drunk driving. Instead of presenting evidence of the BAC to a jury, the prosecution seeking a conviction under this definition generally presents testimony about the person's driving and consumption of alcohol. A police officer will often describe the impaired driving that lead him to pull the person over and the person's ability (or lack thereof) to perform field sobriety tests, such as walking a straight line. Evidence is also usually presented concerning the person's consumption of alcohol. If the jury then concludes that the prosecution has met its burden of proof, it will convict the person of drunk driving. A susceptible person may exhibit impaired driving after one drink and therefore be convicted of drunk driving.

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What is the difference between probation and parole?

Probation is a criminal sentence; parole is one way of completing a criminal sentence of incarceration. In most jurisdictions, first-time offenders are considered for probation, particularly if their offense was nonviolent. A person placed on probation is typically given a jail or prison sentence that is suspended as long as the person abides by the terms and conditions of probation. Common terms require the person to contact a probation officer once a week and to work, go to school, or look for work. Other terms can include required attendance at alcohol treatment or narcotic-abuse programs and educational classes on such subjects as anger management or good driving. The length of probation and its terms are enumerated at the sentencing and once the person has completed the terms of probation, he or she is free of court supervision.

Typically, an offender has been sentenced to an indeterminate or range of years in prison. After the offender has served the minimum amount of time authorized, the parole board decides if the offender is ready to be released from incarceration to finish out the sentence on parole. Parole boards consider the nature and seriousness of the crime, the views of the victim, the progress the offender made in prison, how crowded the prison is, and whether the offender has a someplace to go in the community. If parole is granted, the offender will have to abide by terms and conditions similar to those for probation for a specified period of time. If he or she completes the parole period, the criminal sentence is discharged.

Both probation and parole can be revoked if the offender commits another crime or seriously violates one of the conditions of release. The revocation proceeding requires written notice to the offender, an opportunity to explain and call witnesses, an impartial decision-maker, and a written decision stating the reasons for revocation. If parole is revoked, the parolee goes back to prison and serves the remainder of his or her sentence in jail or prison.

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Is driving over the speed limit a crime?

Traffic violations can be felonies, misdemeanors, or infractions. Felonies and misdemeanors are crimes, but infractions are usually not thought to be part of the criminal justice system. Driving over the speed limit is usually classified as an infraction in those systems that use the infraction category and as a minor misdemeanor in the systems that do not. If driving over the speed limit is classified as a misdemeanor, it is technically a crime, but often such crimes are excluded from consideration in a person's criminal record. Whether speeding is an infraction or a crime, it is usually punished by a fine. It is common for the fine to increase in proportion to the amount over the speed limit for which the ticket is written. Most jurisdictions tell the speeder the amount of the fine on the citation (ticket) and often give instructions for pleading guilty and paying the fine by mail. The offender may have to pay a special fee to contest the ticket at trial and may not be entitled to a jury trial.

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Learn More: Criminal Law

Our criminal law has its roots in medieval England. Under early common law, criminal behavior was considered a breach of the King's peace, and therefore, considered harmful to society in general, which required governmental action. Only the major felonies, such as treason, rape, larceny, battery, kidnapping, murder, and arson were prosecuted and the only sentence was death. Today, criminal law is a vast and complex body of statutes, rules, and judicial decisions that touch nearly every aspect of our lives. State, federal, and municipal criminal codes have divided the old common-law felonies into many separate crimes and now provide an array of sentencing options. In addition, new crimes have been defined addressing drugs, automobiles, businesses, organized crime, computers and other modern situations.

A crime must be clearly defined in order to pass scrutiny under the federal Constitution, which prohibits the government from taking a person's life, liberty, or property without due process of law. A vague description of the crime or a lack of specific elements or intent needed for committing the crime leaves a person without knowledge of exactly what is prohibited. In order to be a crime, the prohibited conduct must include both a "mens rea" or intent and an "actus reus" or bad act. Accidentally hitting somebody when you draw back the baseball bat to swing at a ball is not a crime because it lacks required intent. Wishing someone would drop dead is not a crime because it lacks the bad act. Examples of crimes and topics of interest in criminal law include:

Drug violations are criminalized in both federal and state criminal justice codes, which typically list controlled substances, which are prohibited under any circumstances or may not be used except under a doctor's care. When a person uses one of these substances in violation of a criminal statute, he or she has committed a crime.

DWI/DUI means "driving while intoxicated" or "driving while under the influence" and refers to the crime of drunk driving. This crime usually includes driving while using drugs or alcohol and operating a car or other kind of motorized vehicle, such as a motorcycle or boat. Drunk driving is defined by each state's criminal code.

Federal jurisdiction refers to authority of a federal court to hear cases involving crimes charged under federal law. Crime has traditionally been the domain of individual states, but Congress is authorized through its powers under the commerce, postal, and taxing clauses in the Constitution to make criminal laws covering those areas. While a person can be prosecuted for the same incident under state and federal law, most often the choice of whether to bring an action in state or federal court is based upon resources available to investigate and prosecute the crime and on sentencing options.

Felonies are crimes punishable by over one year in prison. Most felonies are also punishable by a fine, but the critical determination for considering a crime a felony is the prison sentence.

Fraud is not a separate crime, but is an important part of property crimes such as embezzlement and false pretenses. The lawbreaker must knowingly and intentionally deceive the victim in some manner for the fraud element to be satisfied.

Grand jury proceedings are a method used by prosecutors to bring criminal charges against a criminal suspect. A prosecutor will often convene a grand jury when investigating complicated criminal matters.

Juvenile crimes are typically called delinquent acts and handled in the juvenile court system. The major purpose of the juvenile system is to rehabilitate the offender, and many sentences require counseling or other family intervention. Juvenile court jurisdiction typically ends when a person turns eighteen.

Misdemeanors are crimes with a punishment of less than one year in prison. Many crimes, such as theft, have degrees of seriousness with the most serious being felonies and the less serious being misdemeanors. Often, procedures used in misdemeanor prosecutions are abbreviated and in some cases, do not require a trial.

Parole and probation are used in the sentencing phase of the criminal-justice system. Parole refers to the condition of supervised release that occurs after an offender has spent time in prison. Probation is a sentence imposed instead of prison and is usually subject to terms and conditions designed to make the offender a law-abiding citizen.

Prosecution refers to the government's case against the lawbreaker. A prosecutor - the lawyer presenting the government's case - has complete discretion to decide whether to bring a charge against an alleged offender and must prove all charges beyond a reasonable doubt.

RICO refers to the federal Racketeer Influenced and Corrupt Organization Act passed in 1970 as part of a larger organized crime bill. The purpose of the act is to combat the infiltration of organized crime into legitimate businesses, but also it has been used to prosecute individuals other than just those associated with organized crime.

Sex offenses include much more than the common-law crime of rape, which historically was limited to unlawful sexual intercourse by a man against a woman through the use of force or the immediate threat of force. Most states prohibit lesser invasions, such as unwanted touching, as well as prosecution of spouses for sexual assault. In addition, sex offenses include crimes that are defined based on the status of the victim, such as a child or therapy patient.

Traffic violations may be crimes or may be classified as infractions, which are generally not considered part of the criminal law. In jurisdictions where they are crimes, they are typically considered the lowest level of misdemeanor and are only punished by a fine. However, some traffic violations can rise to the level of more serious crimes, such as vehicular homicide or leaving the scene of an accident.

Victims' rights refers to a body of emerging law that focuses on the needs and concerns of crime victims. Victims now have rights, for example, to information about the prosecution of the crime committed against them, to receive counseling and compensation, and to participate in the sentencing process.

White collar crimes refer to the group of property crimes typically committed to gain a business or professional advantage. White collar crimes include mail fraud, bank fraud, securities fraud, embezzlement, tax crimes, and environmental pollution.

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What is the difference between an agency adoption and an independent adoption?

In an agency adoption, the prospective adoptive parents contact an adoption agency to start the process, and the agency acts as an intermediary between the adoptive parents and the birth parents, matching them up and guiding them through all of the necessary hurdles to finalization. In an independent adoption, the birth parents and adoptive parents locate each other and work together independently to accomplish the adoption without the benefit of any agency involvement, although typically a lawyer is hired to make sure that all legal requirements are met.

Each type of adoption process has its advantages and disadvantages. Using an agency can be beneficial, for example, because agencies are in the business of locating children and matching them with parents, and they are familiar with all of the requirements, which can be overwhelming to prospective parents and birth parents alike. In international adoptions, especially, it can be advantageous to have someone who knows the ropes intercede on the prospective parents' behalf. Agencies can also provide counseling and other support services to the birth and adoptive families, both before and after the adoption. Some agencies have selection criteria that may screen out certain prospective parents, and waiting times can be very long.

Independent adoptions may allow prospective adoptive and birth parents more control over the adoption process. All parties may have a greater opportunity to get to know and "select" each other. Adoptive parents may be able to circumvent an agency's selection criteria and shorten the waiting time by going the independent route. On the other hand, birth parents may not receive counseling in an independent adoption, which could lead to greater uncertainty and even the possibility of a change of heart. Additionally, independent adoptions are not legal in all states, so it is essential to check applicable state laws before choosing this option.

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Under what circumstances will the court award alimony or spousal support?

The obligation of spouses to support each other does not necessarily terminate when they divorce. If the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse's support, the court will usually award alimony, at least temporarily.

Although historically spousal maintenance was typically awarded to homemaker wives, to be paid by breadwinning husbands, that is no longer always the case. Now, either spouse may be awarded alimony if the other has the more substantial income and the recipient spouse's income is insufficient to support him or her at the level to which the spouses were accustomed during the marriage.

Spousal support is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties' children while the other climbed the career ladder and achieved a higher income. In such cases, the alimony will often be temporary, providing income for the period of time that will enable the recipient spouse to become self-supporting. This temporary, or rehabilitative, spousal support enables the spouse receiving it to further his or her education, reestablish himself or herself in a former career, or complete childrearing responsibilities, after which time he or she can be self-sufficient.

The amount and duration of alimony depends on several factors, including:

  • The length of the marriage;
  • The age of each spouse;
  • The health of each spouse;
  • The ability of each spouse to be self-supporting, including a consideration of responsibilities to the parties' minor children, if any;
  • The income of the primary breadwinner; and
  • Standard of living the parties enjoyed during the marriage.

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What is the legal divorce process like?

Although some divorces are very simple and can be handled with a minimum amount of red tape and delay (such as when there is no significant property involved and the couple has no children) most divorces are far more difficult and can take many different courses. The following is a basic outline of the divorce process.

  • One spouse contacts a lawyer, who assists in the preparation of a complaint, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought.
  • The complaint is filed with the court and served on the other spouse, together with a summons that requires that spouse's response.
  • The served spouse must respond within the time limit prescribed or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief. The response, or answer, must set forth the relief that the answering spouse requests.
  • The parties, through their attorneys, engage in "discovery," during which they exchange all documents and other information relevant to deciding the issues in the divorce such as property division, spousal support, child support, etc.
  • The parties may attempt to reach a settlement based on the full disclosure to each other of all relevant information. The settlement process can be initiated voluntarily or facilitated by the parties' lawyers or a neutral third party, such as a mediator.
  • If a settlement is reached, the agreement encompassing the terms of the settlement is submitted to the court.
  • If the judge approves the agreement, he or she issues a divorce decree that includes the terms to which the parties agreed. If he or she does not approve it, or if there has been no agreement, the case will go to trial.
  • At trial, the attorneys present the evidence and arguments for both sides, and the judge decides the unresolved issues, including child custody and visitation, child and spousal support, and property division, and grants the divorce.
  • Either or both parties can appeal the judge's decision to a higher court.

The entire process can take from as little as a few months to as long as several years. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

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Learn More: Family Law

The laws relating to families have changed dramatically since the 1970s as judges and legislators have reexamined and redefined the legal issues involved in divorces, child custody disputes, child support, domestic violence, and other family law matters. Family law has become entangled in national debates over family structure, gender bias, and morality. Few legal areas are as emotionally charged as family law, primarily for the litigants, but also for the lawyers and judges involved in the cases and even the public at large. Despite the changes already made by courts and legislatures, family law remains a contentious and ever-changing area of law, which will continue to evolve as families and society evolve.

The division of marital property has also changed in recent years, so that now each spouse is given a more equitable share of the property upon divorce. One change that demonstrates this phenomenon is the recognition of the homemaker spouse's contributions to the accumulation of marital property. For example, whereas once the husband who developed and grew his own business while his "nonworking" wife stayed home would walk away from the marriage with all of the business assets, courts now award a significant portion of the business assets to the wife, who enabled that business growth by taking care of the home and children, and by entertaining business clients and associates. On the other hand, homemaker spouses are not considered as dependent as they once were, and as a result alimony, if awarded at all, is now often temporary, with the thought that after a period of "rehabilitation" these spouses can become self-sufficient.

Issues such as child custody, too, have evolved in the courts as cultural and societal attitudes have changed. Mothers may have been favored in many custody disputes of the past, but fathers are given much more consideration than in the past. Custody battles, while always difficult and emotional, have become even more complicated as reproductive technology has increased the ways in which people can become parents. Family law lawyers and judges are faced with new, difficult, and sensitive questions such as who gets custody of fertilized embryos when a couple that was involved in infertility/assisted-reproduction treatments separates. Surrogate parenting, too, presents heart-wrenching custody issues when the surrogate fails to abide by the surrogacy contract or wants visitation with the child. Equally difficult issues can arise when sperm or egg donors make some claim to their genetic offspring. These issues involve questions relating not only to custody laws, but also to those involving adoption, children's rights, and paternity. And as technology advances, the law will be presented with an even greater challenge to keep pace.

Another major change in family law in recent years is the recognition that many family disputes can be resolved more expediently and in a less acrimonious manner than through the traditional litigation process. In divorce and child custody cases in particular, the adversarial process has increased tensions between the parties that do not abate even when the process is complete. As a result, many states have begun to explore other, non-adversarial alternatives, such as mandatory mediation, which can save time and money and preserve relationships to the extent possible.

Family law lawyers can provide valuable counsel and objective representation in what can be emotionally charged situations. Their experience may focus on a particular area, or may include several or even all of the following family law issues.

Adoption is a legally recognized way of forming a family. Adoption options include international adoptions, domestic adoptions, agency adoptions, independent or private-placement adoptions, stepparent adoptions, blood-relative adoptions, surrogacy-related adoptions, open adoptions, and closed adoptions.

Maintenance and spousal support are legal terms for income provided by one spouse or former spouse to the other during a separation or after divorce. Although once traditionally awarded primarily to wives for an indefinite period, alimony awards are now awarded to either spouse if he or she needs financial assistance and the other is able to provide it, and they tend to be temporary, for a period of rehabilitation that enables the recipient spouse to become self-supporting.

Child support is generally ordered by the court in situations in which a child lives with one but not both parents. The non-custodial parent (the parent with whom the child does not live) is responsible for contributing a certain portion of his or her income, based on state child support guidelines, to help support the child, even if the custodial parent has income of his or her own.

Children's rights cover a broad spectrum, which includes not only the rights afforded to all U.S. citizens, but also those rights that are theirs due to their status as children, such as the right to food, clothing, shelter, medical care, and education. Children are not, however, guaranteed all of the constitutional protections that are provided to adults.

Custody and visitation issues can arise when parents are divorced or separated, when the parents have never been married, or when some type of reproductive technology, such as surrogate motherhood or sperm and egg donation cases, complicates the issues even further. Courts generally apply a "best interests of the child" standard when determining to whom custody should be awarded.

Divorce is the legal process by which a marriage is terminated. In a divorce proceeding, the parties' marriage is legally ended and the related issues, such as spousal and child support, child custody and visitation, and property and debt division, are resolved, either by the parties' voluntary agreement, through the assistance of a mediator, or after a court trial.

Domestic violence and neglect include physical, mental, and sexual abuse of children, mates, elderly persons, or other vulnerable adults in the perpetrator's household. Abuse and neglect have long-term consequences, but there are legal mechanisms through which victims or interested third parties can seek protection.

Juvenile law relates to juvenile delinquency proceedings, in which the juvenile is charged with an offense that would be a crime if committed by an adult. It also relates to juveniles charged with status offenses, abused and neglected children, and children in need of social services.

Paternity refers to a legal action to establish that a man is the father of a child. A paternity action may be brought in order to impose a child support obligation, establish a right to inheritance, secure consent for the child's adoption, or gain or prohibit custody or visitation rights.

Prenuptial agreements are contracts entered into by a couple in contemplation of marriage. They usually address property issues that may arise in the event of divorce or death, and are often used as vehicles to provide for greater awards of property to children from previous marriages, or when one spouse brings substantially greater assets to the marriage.

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Can a person recover damages for injuries sustained on someone else's property?

An owner of property has a duty to protect members of the public from injury that may occur upon the property. The injured person may be able to recover money for those injuries if he or she can prove that the property owner failed to meet that duty. The hurdle plaintiffs face is that the nature and extent of the property owner's duty will vary depending upon the facts of the situation and the jurisdiction in question.

Some states focus upon, solely, the status of the injured visitor to the property. These states divide the potential status into three separate categories: invitee, licensee, and trespasser. An invitee is someone who has been invited onto the land because that person will confer some advantage to the property owner, such as a store patron. An owner of property is required to exercise reasonable care for the safety of the invitee. A licensee is someone who enters upon the land for his or her own purpose, and is present at the consent, but not the invitation, of the owner. For example, a door-to-door salesman who enters the property and stays to chat with the owner about the product that he is selling is a licensee. The owner's duty to a licensee is only to warn of hidden dangers. For example, if the owner knew the front step was rotten and did not warn the salesman, the salesman may be able to recover if he thereafter falls through the step and injures himself. Finally, a trespasser is an individual who enters onto the property without the knowledge or consent of the owner and who remains there without any right or permission. Trespassers have difficulty suing property owners because property owners' duty towards trespassers is not to place traps and hazards on their property. In some cases, the owner must also warn trespassers of the hazards if they are unlikely to be discovered by the trespasser and could cause serious injury or death.

Other states focus upon the condition of the property and the activities of both the visitor and owner, rather than considering only the status of the visitor. In these states, a uniform standard that requires the owner of the property to exercise reasonable care to ensure the safety of invitees and licensees is generally applied. The plaintiff must prove that the duty of care has not been met through an examination of the circumstances surrounding the entry on the property, the use to which the property is put, the foreseeability of the plaintiff's injury, and the reasonableness of placing a warning or repairing the condition. Obviously, whether reasonable care has been rendered depends greatly upon the particular circumstances.

The property owner's duty of care toward children is greater than the duty owed to adults. Even if the children are trespassers or engage in dangerous behavior, the property owner must still take precautions to prevent foreseeable harm to children. The classic example of a property owner's greater duty of care to children arises in the context of backyard swimming pools. Owners must fence, gate, and lock their pools in a manner that keeps children out and if they fail to do so, they will be found liable for injuries to children, even if the children were trespassers that were warned to stay off the property.

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Can anyone bring a wrongful death claim?

No. Generally, most states that recognize a wrongful death cause of action limit the pool of potential plaintiffs. Some states limit this group to the deceased's primary beneficiaries, defined as the surviving spouse and the deceased's children. Other states allow the parents of the deceased individual to bring a wrongful death claim. In addition to these individuals, some states recognize the rights of any dependent, whether closely related or not, to bring a wrongful death claim provided the person actually depended on the deceased for economic support. In those jurisdictions, it apparently makes little to no sense to allow the second cousin once removed of the deceased, who saw him once every five years at a family reunion, to recover for the loss of the deceased's future earning potential.

Some states require any recovery gained in a wrongful death action to be divided amongst the deceased's heirs at law or to be distributed to the deceased's heirs at law as it would be in any normal probate proceeding. In these situations, distant relatives may receive some "trickle down" of damages, even though they were not financially dependent upon the deceased during his life.

If more than one plaintiff is entitled to recover, all plaintiffs will share in the award. The manner in which the award is divided can be confusing and will depend upon the laws in the particular jurisdiction where the matter is brought.

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Learn More: Plaintiff's Personal Injury Law

Personal injury actions require, by their very nature, that someone be injured. The requisite injury can either by physical or, in some cases, emotional. The general goal of personal injury actions is to place the blame for the injury on the party who caused it and to require them to compensate the injured for the losses sustained.

Not every injured plaintiff is entitled to recover damages for the injury he or she sustains. Besides an injury, the plaintiff must establish, through evidence, that the defendant is legally liable for his or her injuries. This requires proof of causation both in terms of actual, factual causation and legal causation. Whether legal causation is established depends on the facts and circumstances of the particular matter in question. The defendant can be held liable as a result of either the actions he took, or the actions he had a duty and failed to take.

Some personal injury actions revolve around legal causation derived from a concept of intentional conduct, whereby it is generally held that if one intentionally harms another, or knows that the conduct which is engaged in causes a substantial likelihood that harm will result, liability for the resulting harm will in fact attach. Other personal injury actions have as their legal causation a looser concept of fault called negligence. Under a negligence theory, in comparison, one is liable for the results of actions, or inaction, where an ordinary person in the same position should have foreseen that the conduct would create an unreasonable risk of harm to others. Still other types of personal injury actions are based on strict liability, a no-fault system where liability may attach regardless of the fault of the various parties, including the plaintiff.

In some situations, the defendant's conduct, while questionable, does not rise to a level that entitles the plaintiff to a recovery. For example, if a plaintiff knowingly and willfully chooses to encounter a known hazard, the law holds that he or she has "assumed the risk of injury" and therefore the defendant is not liable. This theory applies for instance in a case where the plaintiff walks on an obvious build up of snow and ice caused by the defendant property owner's failure to shovel his sidewalk, falls and breaks her hip, and is unable to recover for her injuries because she knew of the hazardous condition and willingly chose to encounter it. Plaintiffs are denied recovery in other cases if their subjective belief about a situation does not match an objective "reasonable person" standard. For instance, where the defendant approaches the plaintiff and states "I might poke you in the eye if you wear that red sweater again," it is likely that no actionable assault occurred due to the fact that there was no immediate threat of harm that caused reasonable apprehension on the part of the plaintiff.

Personal injury law can involve many different types of claims, theories, and principles. Some of the more common, or interesting, types of personal injury actions include:

Animal bites can result in the animal owner's liability to the person who is bitten or who is injured while trying to avoid a bite.

Assault and battery are two intentional torts that involve improper contact with another, without permission or consent, or the threat of such contact.

Aviation accidents quite often result in serious injury or death. When these accidents occur, serious questions regarding the liability of the airline, its employees, or the government may arise.

Defamation and privacy are two separate areas that concern the rights of individuals to have their names and reputations protected, and also to have their privacy preserved.

Motor vehicle accidents raise numerous questions as to the liability of one participant to another and also raise interesting questions regarding who should be responsible for covering the losses.

Premises liability concerns the responsibilities of owners and possessors of property to safeguard others from dangerous conditions or hazards on the property and to prevent others from being injured while on the property.

Property damage causes of action concern the rights of owners or possessors of property to protect their property from damage, theft or intrusion.

Railroad accidents may result in personal injury or death and subject the railroad to liability.

Slip and fall cases are very common causes of action and relate closely to the duty of an owner or possessor of land to maintain the property in a safe manner for the benefit of others lawfully entering upon the land.

Wrongful death actions may be brought by the dependents or beneficiaries of a deceased individual against the party whose action or inaction was causally related to the death.

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In what ways are joint ventures and partnerships alike?

Joint ventures and partnerships share many characteristics. A partnership where two or more individuals or entities join together for a particular "short term" purpose is sometimes called a joint venture. In a partnership or joint venture, each partner has equal ability to legally bind the entire entity. A partner can represent the whole organization in the normal course of business, and his or her legal actions on behalf of the partnership (in this case, the joint venture) create legal obligations.

Example: John's Produce, Inc., and Helen's Packaging Co. form a joint venture to sell prepackaged salad kits. Helen's Packaging purchases new bag sealing equipment for the joint venture without receiving JPI's approval. The packaging company's status as a partner gives it the ability to bind the entire venture even without the other company's consent. The equipment company can enforce the purchase agreement against the entire venture because Helen's Packaging had the apparent authority to bind the venture.

While it is legal to limit the powers of individual partners through a partnership or joint venture agreement, those agreements do not bind the rest of the world. Since businesspeople outside of the partnership have no knowledge of the limitations, they are entitled to rely on the apparent authority of an individual partner as determined by the usual course of dealing or customs in the trade.

Individual members of a partnership or joint venture may face liability for the actions of the partnership or the joint venture. However, new limited liability partnership laws and corporate form options for joint ventures may reduce this risk.

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What are the possible consequences of personal liability for business debts and obligations?

Personal liability can devastate the accumulated wealth of a lifetime of work. This form of liability opens the individual to claims for a wide range of business obligations. Most people realize that personal liability may extend to business losses, but other obligations may also reach individuals, including:

  • Damage awards in lawsuits;
  • Tax deficiencies and penalties; and
  • Back wages and benefit payments.
Example: Wendy operates a trucking company as a sole proprietor. One of her drivers causes an accident that kills several people. If the company's insurance and assets are inadequate to cover the damages awarded in the wrongful death suit, the plaintiffs may enforce the judgment against Wendy's personal assets.

Limited liability offered by incorporation shelters business owners from personal liability. Certain types of insurance can also help cover business owners, directors, and officers. However, if an owner or director performs certain personal acts, behaves illegally, or fails to uphold statutory requirements for corporate status, he or she may face personal liability despite the corporate shelter.

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Learn More: Business Organizations

Most people approach a new business opportunity with great enthusiasm. While this enthusiasm provides much of the needed fuel to help a new business get started, businesspeople must arm themselves with important legal information that will guide their most basic decisions. The form a business organization selects creates specific legal consequences for matters as diverse as taxes, insurance, and management. Once formed, a business faces challenges in its relationships with its shareholders, creditors, employees, and other businesses. Every business concern has important legal issues that can dramatically affect the likelihood of future success. Experienced lawyers can help create a business strategy that manages legal risks.

Business successions take place upon the death or withdrawal of a business owner. Depending on the form of the business, transfers of ownership interests may not achieve a complete change of control. Careful estate planning can minimize problems and facilitate business owners' goals.

Closely held businesses involve a small number of shareholders, and are common forms for family-owned corporations. Due to their low number, shareholders often assume management and direction of the company. This consolidation of responsibilities can lead to specialized legal issues.

Directors' and officers' liability occurs when corporate representatives undertake actions that are illegal, unauthorized, or damaging to the business. While the corporate structure offers protection from liability in most instances, some actions or decisions can expose directors and officers to legal risks even if made in the course of business.

Dissolution of a business may happen for a variety of reasons including management deadlock and lack of profitability. Since most business organizations exist in legally-mandated forms, they must use statutory procedures to close their doors. State laws help protect shareholders and creditors of dissolving companies.

Formation and business planning continues long after the articles of incorporation are first written. Businesses must plan for profitability, tax consequences, employment issues, and other concerns. Business forms can change with commercial needs and realities, and savvy businesspeople will keep an open eye for changing risks and opportunities.

Franchising allows a company to use several small businesses to distribute its products and services while maintaining a consistent public image. When a company grants a franchise, it lets another business use and profit from its successful business plan. State and federal laws strike a balance between larger corporations and the small business owner seeking a franchise.

Joint ventures involve two or more companies or individuals in a partnership for a particular purpose. Each contributing member provides capital, expertise, technology, or other special resources to the venture. Special legal liabilities apply to the members of the venture.

Limited liability companies allow their owners to enjoy the tax status of a partnership and the limited liability of a corporation. This relatively new business form is gaining in popularity nationwide, with special state laws addressing formation and operational issues.

Mergers, acquisitions, and divestitures involve structural changes to a company, either through the purchase or the sale of the company or its components. These corporate changes may affect shareholder rights and raise antitrust issues.

Nonprofit and tax-exempt organizations incorporate in order to pursue an organizational goal in the public interest. Nonprofit corporations exist under state law, but must apply to the Internal Revenue Service for tax-exempt status. Although the application process is lengthy, qualifying organizations realize substantial financial benefits.

Partnerships can arise in some instances even when the partners do not intend to form a distinct organization. While some types of partnerships do not impart the liability limitations of other business forms, they do have favorable tax implications. Increasingly, state laws provide for new partnership forms that grant more liability protection.

Reorganizations allow bankrupt businesses to regroup in order to stay open and satisfy creditors as much as possible. The commercial bankruptcy option has many advantages over liquidation, which requires selling off many assets and after which the business ceases to exist.

Shareholders' rights include certain powers of control over the corporation. The corporation must protect shareholder interests, and perform certain legal duties in order to preserve shareholders' prerogatives and options.

Trade associations connect individual businesses and business groups to work together for common goals. Trade associations provide a forum for brainstorming, political action, and industry standardization.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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