Self Evident Truths

You can’t spend more than you make without going broke. This is true over the long run for ordinary people, big business, and countries. Continuously borrowing more money is not a solution. Neither is printing it.

There is also no such thing as a free lunch. You may get it without paying for it yourself, but somewhere along the line somebody else footed the bill.

These propositions seem more self-evident to me than Jefferson’s unalienable right to, “Life, Liberty, and the Pursuit of Happiness,” but they’re disregarded day after day, week after week, month after month, and year after year by almost everyone, including most importantly by the people who profess to know what’s best for us – namely the elected public officials we entrust with our common welfare and the supposed experts from academia who advise them.

Our economy is anemic, our national debt is skyrocketing, and the percentage of the population in the workforce has been declining for decades. In the meantime, the cost of entitlements goes up and up.

Something has to give. Nobody promised than the high standard of living, freedom, and democratic government we’ve enjoyed for generations would last forever. Civilizations come and go. I sure wish people would start acting as if it will all be lost unless they stop insisting on having their cake and eating it too.

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Military Divorces: camouflage and complexities

military divorceMilitary divorces are different than civilian cases, and often times more complicated. That’s why the confusion was understandable when a potential client approached us with questions regarding how she should go about divorcing her husband who is an active-duty service man.

In this specific woman’s case, her biggest question was where. Though the couple has a home of record in Texas, the family is currently stationed in San Diego, California; she didn’t know which state would be best to file in.

We advised her to file here in San Diego so as to gain court ordered spousal support and child support immediately. However, once filed here, and assuming the children have been here for over six months, the San Diego court will have continuing jurisdiction over the children. This means if she wished to move back to Texas (or to any state for that matter), she should do so immediately, hoping that her husband doesn’t file in California before the children have lived in Texas for over 6 months. If he did, the woman could be forced to return the children to their father. With this in mind, if she so wishes to move back to Texas, she should tell her husband where she will be reached, how she can be reached, and allow for him to visit their children- in writing. That way, there is zero room for accusation of parental kidnapping.

Divorce is hard. It can be even harder for a family in the military. For more information on military divorce, visit our website: http://stanprowse.com/military-divorces-are-different

Refusing to refile

ArgumentJust as each person is different, every divorce case is different. Perhaps if this wasn’t true, there’d be less divorce! Though that world might be easier, it certainly isn’t the one in which we live, as seen by the interesting scenario a potential client approached us with.

He and his wife had filled a separation agreement. They were both in accordance that neither party wished to be supported by the other. In the final stretch of the divorce process, the couple hit a bump in the road on the way to separate paths that so enraged this man’s wife that she began “stonewalling”. According to the husband, he deleted some old pictures, which infuriated his wife to the point where she refused to refile a FL-141. This is a mandatory form in which you swear to the court that you have served your Preliminary and/or your Final Declaration of Disclosure. Though this is a personal matter, this man believes his wife won’t listen to reason. He asks if his next step should be to request a trial.

The key idea to remember: don’t jump the gun. It is best to do all things possible to avoid a trial, especially if you can’t afford a lawyer, as this man indicated he could not. Rather, he should start with a sincere letter apologizing for deleting the old photos. Ask her politely to move forward. If she doesn’t listen, then this man will have to file a motion to compel, which is never easy to do without legal assistance.

For more information on this topic, please visit our website: http://stanprowse.com/contested-uncontested-divorce

Business law: it’s just personal

Close up of businessman placing wooden block on jenga tower

We’ve all heard the phrase “It’s nothing personal, it’s just business”. But what about when it is personal? For example, what if after 23 years of holding stock in a company, you’re told that you are not entitled to any of your shares? Let’s look a little closer.

A potential client recently came forward with an interesting situation. 23 years ago, he and a business partner started a real estate company and received shares (50% of total issued) in the private company. Three years after the company started, this man stopped all association with the company and partner, but kept his stock. Now 20 years later, he wants to sell his stock. The company, however, which happens to be the only other share holder, claims this man verbally gave up his shares when he disassociated himself with the company those 20 years ago. With the original certificate of ownership in his arsenal, and no signature of his waiving his right to his shares, this potential client wonders what he should do in order for his stock ownership to be recognized.

If this man was sitting in our office, the first thing I’d ask is how much these shares are worth. With the passage of 20 years and no written records to support either side, fighting over this in court has the potential to be very expensive and very risky. On the other hand, having the original certificate puts the burden of disproving share rights on the opposing party. Furthermore, if he does own half the shares, anything the “partner” might have done since the man disassociated himself to deprive him of his interest would probably be void. You need a majority of shares to elect directors, and a majority of directors to make management decisions, and the “partner” didn’t have a majority.

The smartest thing for this man to do is to consult with a lawyer and start making waves. But one should always bear in mind that if there’s nothing to get at the end, there’s no use in throwing away money getting there.

For more information on business law, please visit our website: http://stanprowse.com/steps-to-forming-a-corporation

 

Divorce papers: have you been served?

Petition for divorce paperSeparated from his wife of 18 years of marriage, a man goes to pick up his children for a weekend visit. She wants a divorce; he does not. Upon his arrival at his spouse’s home, a friend of the wife attempts to hand him divorce papers while he’s in the car. He claims he “didn’t accept them”. He wants to know if he has really been served properly if his wife’s friend threw them into his car after he refused to accept them.

The answer is simply yes. That is a valid service of process. It doesn’t matter if you don’t “accept” the papers. There is no signature necessary or legalities with being served. The best thing for this man to do is accept the realities of the situation and realize that there is no stopping the process if his wife truly wants a divorce.

For more information on the process of divorce, visit our website: http://stanprowse.com/divorce-five-steps-before-filing

Can you receive retirement benefits from an ex-spouse that is still in the workforce?

Senior-DivorceA potential client inquires about her ability to receive retirement benefits from an ex-husband. Though her ex-spouse is eligible to receive pension benefits at age 50, he plans to work for an additional 10 years.  Can she collect her share of benefits when he becomes eligible, or will she have to wait until he officially retires?

We responded with information regarding a Gillmore election; a method during a divorce in which one spouse receives the present value of his or her half of the other spouse’s retirement benefits. In this particular case, the judgement of the divorce was entered some time ago, leading us to believe it’s now too late to change the matter of retirement benefits. Her best bet would be to take her concerns to a family law attorney to have her question researched further.

For  more information on retirement benefits during divorce, please visit our website: http://stanprowse.com/divorce-rights

OBAMACARE DODGES ANOTHER BULLET

obamacare-tax-creditsOn June 22, 2015, the U.S. Supreme Court decided King v. Burwell, a case involving the interpretation of the Affordable Care Act (ACA), otherwise known as Obamacare.  (King was some otherwise anonymous individual; Burwell was Secretary of Health, Education and Welfare.)  The Court’s decision preserved the availability under the Act of federal tax credits for qualifying low and middle income people buying health insurance on the insurance exchange run by the federal government, rather than on an exchanges run by a state.

The obamacare tax credits amount to insurance premium subsidies.   They may be taken in the form of a refund, which may help in visualizing the result.  If I qualify for the tax credit and you don’t, part of the tax you pay goes to me, so you are essentially paying part of my insurance premium.  Furthermore, if you do qualify for the tax credit, but you don’t buy your insurance through an exchange, you pay a penalty.

If you are a believer in income equality or feel that in principle everyone should have health insurance (whether your feeling is ethically, religiously, or economically based), you are probably happy about this.  On the other hand, if you are opposed to big government and a big believer in self-reliance, it amounts to loathsome income redistribution by taxation.

Disregarding the legal arguments advanced by each side, it’s pretty clear that the Obama administration was in the first camp, while Mr. King and his lawyers, and the folks paying their bills, were in the second.  Because this article is on a legal website, we turn to the legal arguments without saying much about the politics.

The decision turned on applying the rules of statutory interpretation to one phrase in the voluminous statute: “an Exchange established by the State.”  The first rule of statutory interpretation is the plain meaning rule; that words in a statute should be taken at their plain meaning.  The second rule is that ambiguous words should be interpreted, and interpreted in their context.

Here is the trick. If you focus on the context instead of the word, you may convince yourself that a word unambiguous when standing alone is ambiguous in its context.  Then you may disregard its plain meaning in favor of what you think the context requires.  If, for whatever reason, you like the result of doing so rather than the plain meaning result, you decide against the plain meaning.  That is what happened, for better or for worse, in King v. Burrell.

The word state is a defined term in the ACA, and therefore it is capitalized throughout.  It is defined as a state of the United States, which excludes the federal government.  In short, by definition the federal government cannot be a state.  Obamacare specifically says that a person gets the tax credit when he buys health insurance through “an Exchange established by the State.”  Standing by itself, the plain meaning of State cannot be denied – no state exchange, no tax credit.  A few weeks after the ACA was passed, its principal architect was videotaped saying exactly that.

To continue reading about this subject please visit our website below:

http://stanprowse.com/obamacare-tax-credits

By:  Stanley D. Prowse