The Idaho Business Law - Blog

10 Holiday Tips for Divorced or Separated Parents

2010-12-16T12:01:00.000-08:00

Holidays and special occasions can be emotionally draining when you are sharing custody of your children. Divorced and separated parents must communicate with even more diplomacy, patience, mutual understanding, respect, and tolerance than married couples planning holiday travel, dinners, reunions and gift-giving. Juggling schedules during marriage is hard, and it only gets harder after divorce.

Here are 10 tips for making sure everyone enjoys special occasions:

1. Plan Ahead
Develop a parenting schedule before the holidays.
Avoid scheduling the children for dinner with Dad at noon and a second turkey dinner a few hours later with Mom. Instead, arrange for Dad to spend the entire day with the children in all odd-numbered years, and have Mom spend the holiday with them in all even-number years.
If possible, hire a parenting coordinator, usually a child psychologist or divorce lawyer appointed by court to act as a decision-maker until a judge makes a different decision. You have quicker access to the coordinator than the judge, but the coordinator must be paid.

2. Keep Your Word
Stick to the schedule. Arrive on time and drop off the children on time.

3. Keep in Touch
If the children are not with you for the holidays, call them, and be sure to send cards or email. Consider celebrating the holiday or birthday before or after the actual day. Children love parties and gift any time – nothing fancy – but something special you create for them.

4. Let the Children Keep in Touch
If the children spend the holiday with you, let them speak with the other parent. Give the children any cards and email from the other parent, and read the messages to young children who cannot read. If the children are too young to call, help them make or receive a call, and let them have a quiet moment to speak with the other parent. Make sure to avoid planning an exciting activity like gift-opening at the same time that the children are scheduled to speak with their Mom or Dad.
Remember, children usually have a short attention span, so do not blame the other parent if conversations are short.

5. Safe Travel
Make travel arrangements with airlines for long-distance travel. Airlines provide supervision for unaccompanied minors for a nominal fee.

6. The Art of Gift-Giving
Coordinate gift-giving with the other parent. Do not give your child a cell phone if you know Mom is giving her a phone. If your ex-spouse will not cooperate, go ahead with your own plans, but do not complain to the children about the other parent.

7. Acknowledge the Child’s Right to Enjoyment
Let your child take gifts to your ex-spouse’s home. Conversely, if your child brings home a new toy or bicycle, let your child take it back to her Dad’s home, if she wants.

8. To Each His Own
Let the children spend Mother’s Day with Mom and Father’s Day with Dad.

9. Create Your Own Celebrations
Do not insist upon attending your child’s birthday or graduation party if your ex-spouse is throwing the party. Give your own party on another day.

10. Give Your Child Permission to Love Both Parents
Help your child buy or make a gift and card for the other parent, if the child is too young to handle the tasks herself. You are doing your child a favor, not your ex-spouses, because you are giving your child permission to love the other parent – the best gift you can give.

Please keep me in mind if you, or someone you know, need any help this holiday season. I wish the best for you and your family and hope you have a wonderful new year!

Brian K. Marshall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com or email at brian@idahoblg.com

Diminishing the Uncertainty of Divorce

2010-11-22T14:34:00.000-08:00

Since each judge (and every case) is different and brings with him or her a different perspective and life experience, and the judge often has to apply competing principles of law to the complicated lives of diverse individuals, family law is full of uncertainty.

When you go to court for a divorce, you are giving up your power to resolve the issues affecting yourself, your children and your family. You are giving all the power to a stranger, the judge. A good attorney will not just understand the court process; a good attorney will creatively find ways to resolve your case short of going to a trial and keep the decision making power in your hands.

Compromise is not always possible, but the grand majority of family law cases settle before trial. A good attorney will find solutions for families to get through the transition of divorce in a humane, respectful and civil manner. A good attorney gives you the best chance at having a "good divorce"

Okay... maybe you won't ride off into the sunset, happily ever after... but a "good divorce" beats a "rotten marriage" every time.

Brian K. Marshall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com or email at brian@idahoblg.com.

Corporate Drama: Piercing the Corporate Veil

2010-09-08T14:26:00.000-07:00

So a little while back you decided to start a company. You were excited and ready to take on the world. In these formative moments everyone told you, “You need to incorporate to make sure blood sucking plaintiff’s lawyers can’t get your house.” So, in light of the vampire-like consequences of doing nothing, you went ahead and filled out the one-page “Articles of Incorporation” form with the Secretary of State’s Office, ponied up the $100 filing fee, and BAM! – You are now own a corporate entity.

Hmmm. Now what? Seinfeld re-runs, maybe?

Chances are you did exactly what you would have done anyway. You went forward with your business plan. You opened a checking account, ordered some business cards, put together a website, and started making money. But sitting there, quietly and without any notice, in your file cabinet rested your Article of Incorporation, patiently biding its time until you would look for it again. Grinning silently to itself with the expectation that one day in the future, Articles (and its best friend “By Laws”) would become the single most loved or hated pieces of paper in your life.

Now that I set the stage for a DRAMATIC CONCLUSION (you’ll have to read the rest of the blog to find out how this story ends), let’s get quickly and painlessly to the point: A corporate shield is only effective in protecting your personal assets if maintain it. There are essentially three basic ways a blood sucking lawyer can go around the corporate shield and get you personally:

(1) COMINGLING FUNDS/PROPERTY. What this means is that you bought Dominos Pizza for the family last Friday with a company check. Or maybe you bought a Handycam for vacation last summer (because it was such a good deal and you just had to have it) and the company paid for it. In sum, you mixed the company funds with your own and it soon becomes difficult to see where one starts and the other end.

(2) UNDER FUNDED. What this means is that the company’s assets are disproportionately small for the nature of the business and the risks of doing this sort of business. Typically you will see this when the owner(s) of the company immediately drain the company accounts, through salaries or distributions, as soon as there is cash in the account. This is what some call a “sham” or a “shell” company.

(3) FAILURE TO FOLLOW FORMALITIES: What this means is that you haven’t forgotten about what is lurking in the file cabinet. There are certain legal formalities that are required under the law that must be followed for your company to be legitimate.

And now, for the DRAMATIC CONCLUSION . . .

There is not dramatic conclusion. And that it the way you want it.

Child Custody in “Move Away”

2010-08-24T15:07:00.000-07:00

Cases Idaho Courts have long held that it is best for children to have a relationship with both of their parents. In cases where one parent moves so far away that it is not practical or possible to maintain both relationships; Idaho courts will generally have the children stay with the parent who is not moving.

One of the cases directing the courts’ decisions is Roberts vs. Roberts 138 Idaho 401 (S.C. 2003).

In the Roberts case the Idaho Supreme Court determined that the parent who wanted to relocate out of Idaho had to prove that the move was in the best interest of the child. This is different than proving that it is best for a child to stay with the parent who is moving. It means that the new location has to be in the best interest of the child. That can be difficult and even impossible to prove if the child has never lived in the new place. In the Roberts case the moving parent was not able to take their child with them. The same thing happened in several other cases including Weiland v. Ruppel, 139 Idaho 122, 75 P.3d 176 (2003) (Denial of move from Boise to Oregon, affirmed); King v. King, 137 Idaho 438, 50 P.3d 453 (2002) (mother moves to Michigan, custody award to father in Idaho, affirmed); Howard v. Cornell, 134 Idaho 403, P.3d 528 (2000) (permanent injunction against removal of child, affirmed); Hopper v. Hopper, 144 Idaho 624,167 P.3d 761 (2007) (Order allowing relocation of child to Montana, reversed); and, Bartosz v. Jones146 Idaho 449, 197 P.3d 310 (2008) (Order denying mother’s motion to relocate to Hawaii with children, affirmed).
Taken together, these cases create a burden of proof on the parent seeking to move children away from the other parent. That burden can be very difficult to prove, especially if the child has never lived in the new place.
A skilled lawyer with several years of child custody experience is needed to help parents in these situations. Successful cases focus on the Idaho Code’s statute regarding child custody (Idaho Code Section 32-717). That statute requires the court to consider other factors in determining what is in the best interests of a child, including, but not limited to: The wishes of the child’s parent or parents as to his or her custody; The wishes of the child as to his or her custodian; The interaction and interrelationship of the child with his or her parent or parents, and his or her siblings; The child’s adjustment to his or her home, school, and community; The character and circumstances of all individuals involved; The need to promote continuity and stability in the life of the child; and, whether there are issues involving domestic violence.

If you need help involving a custody issue where one parent is moving away, contact me for more information regarding the application of these laws to your specific circumstances.

Brian K. Marshall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com or email at brian@idahoblg.com.

BANKRUPTCY: CHAPTER 7 TRUSTEE

2009-11-18T14:23:00.000-08:00

When a Chapter 7 bankruptcy petition is filed, an impartial trustee is appointed to review the petition and oversee the affairs of the debtor in bankruptcy. The trustee is generally an attorney or someone knowledgeable with the bankruptcy laws, exemptions, and the courts. The trustee will conduct a meeting of creditors, usually within 30 – 45 days after the date of filing.
The debtor must appear at the creditor’s meeting and must be sworn in to answer questions under oath. Creditors may also ask questions. The questions are about the accuracy of the petition, and may include questions about the debtor’s assets. The trustee also inquires to ensure the debtor understands the nature of bankruptcy and potential consequences. The debtor needs to bring a picture ID and a Social Security number card for review.
Some of the questions may include the following:

- Did you sign the petition, schedules, statements, and related documents and is the signature your own? Did you read the petition, schedules, statements, and related documents before you signed them?

- Are you personally familiar with the information contained in the petition, schedules,

statements and related documents? To the best of your knowledge, is the information

contained in the petition, schedules, statements, and related documents true and correct?

Are there any errors or omissions to bring to my attention at this time?

- Are all of your assets identified on the schedules? Have you listed all of your creditors

on the schedules?

- Have you previously filed bankruptcy? (If so, the trustee must obtain the case number

and the discharge information to determine the debtor(s) discharge eligibility.)

- What is the address of your current employer?

- Is the copy of the tax return you provided a true copy of the most recent tax return you filed?

- Do you have a domestic support obligation? To whom? Please provide to me the

claimant’s address and telephone number, but do not state it on the record.

- Have you read the Bankruptcy Information Sheet provided by the United States Trustee?

- Do you own or have any interest whatsoever in any real estate?

- Have you made any transfers of any property or given any property away within the last

one year period (or such longer period as applicable under state law)? If yes: What did you transfer? To whom was it transferred? What did you receive in

exchange? What did you do with the funds?

- Does anyone hold property belonging to you? If yes: Who holds the property and what is it? What is its value?

- Do you have a claim against anyone or any business?

- If there are large medical debts, are the medical bills from injury?

- Are you the plaintiff in any lawsuit?

- Does anyone owe you money

- Were federal income tax returns filed on a timely basis?
About the Author:

Mike Hall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at mike@idahoblg.com.

Idaho Contractor Registration Act

2009-11-06T07:39:00.001-08:00

In an effort to crack down on dishonest, unscrupulous and incompetent contractors, the Idaho legislature enacted into law the “Idaho Contractor Registration Act.” The Act makes it unlawful for contractors to engage in the business, or to hold oneself out as, a contractor without registering with the Bureau of Occupational licenses post January 1, 2006.

The Act defines “contractor” and “construction” very broadly, however, it does not require registration by other professionals that must otherwise be licensed or regulated by the state such as electricians, plumbers and the like. Moreover, the Act has a laundry list of exemptions such as minor projects in which the aggregate amount of labor and materials is less than $2,000.00 or a home owner performing work on their own property that does not have the intention of flipping the property for profit within 12 months of completion of the project. For a complete list of exemptions, see Idaho Code § 54-5205.

Failure to comply with the Act bars a contractor from filing any action in any court of Idaho to recover compensation for work rendered and is also denied lien rights otherwise afforded a contractor for the improvement of real property. It is also considered a misdemeanor if one is found in violation of the Act, subjecting a guilty party up to $1,000.00 in fines and possibly up to six months in jail.

For the obvious reasons stated above, it is imperative for contractors to register under the Act or they may quickly find themselves in the unfortunate position of providing free labor and materials. I have personally seen this happen before; where the work and materials were provided, but because the contractor failed to register, they were left with no viable legal action to receive compensation for their labors.

About the Author:

Chad E. Bernards is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at chad@idahoblg.com.

PREFERENTIAL PAYMENTS IN BANKRUPTCY

2009-10-28T12:16:00.001-07:00

Certain payments made to creditors may be what the Bankruptcy code defines as a “preferential” payments. The Bankruptcy Code defines a preferential payment as follows:

- The transfer of the Debtor’s property;

- To or for the benefit of a creditor;

- For an antecedent debt owed by the Debtor;

- Made while the Debtor was insolvent (the Debtor being presumed to be insolvent within the 90-day period preceding the filing of a petition); and made within 90 days before the filing of the bankruptcy petition (or within one year if the creditor was an insider);

- That enables the creditor to receive more than such creditor would have received in Chapter 7 liquidation proceeding. 11 U.S.C. Section 547.

One of the goals of a bankruptcy is to pay creditors on a statutorily-ranked basis. The law attempts to treat each class of creditors fairly, within the class. If the debtor paid a creditor just before filing of a bankruptcy petition, the law views that creditor as being preferred, or favored, if that creditor received more than it otherwise would have in the Chapter 7 bankruptcy. A debtor, once insolvent, must avoid preferring one creditor over another.
The trustee has the power to void the preferential payment and demand that the creditor return the funds. The trustee must prove that the payment was a preferential payment, and if proved, the payment must be returned to the bankruptcy estate.
If a creditor is alleged to have received a preferential payment, the creditor may have defenses that would allow the creditor to keep the payment. Two of the common defenses are 1) a contemporaneous exchange for new value 2) payments made in the ordinary course of business. If a creditor is facing a preference claim, the creditor should review the claim to determine whether if has legitimate defenses.

About the Author:
Mike Hall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at mike@idahoblg.com.

DON’T FORGET THE LEGAL

2009-10-22T15:22:00.001-07:00

Earlier this year, the Idaho Supreme Court in Ray v. Frasure, 146 Idaho 625 (2009), ruled that a contract for the purchase and sale of real property in the State of Idaho is not enforceable if the contract lacks a legal description. The Court specifically held that a real estate contract consisting solely of a physical address does not satisfy the statue of frauds.

In a nutshell, the statute of frauds says that certain types of agreements, such as contracts for the purchase and sale of real property, must be reduced to a written document. The obvious reason behind this rule is to prevent fraudulent individuals from merely claiming they entered into a verbal contract for the sale of real estate. In other words, the courts don’t want the arduous task of hearing claims of “he said, she said” without some hard evidence of the transaction.

Well established Idaho law has consistently held that a contract for the sale of real property must speak for itself without resorting to parole (oral) evidence to provide any of the terms of the agreement, including the description of the property to be purchased. In short, the Frasure Court held that a common or physical address alone, without a proper legal description in a real estate contract is unenforceable because it does not designate “exactly” the property to be conveyed from the seller to the buyer. Further, if you attach a legal description to the back of your contract (opposed to typing the legal description in the body of the contract itself), make sure you attach it before the agreement is signed and not after the fact.

Although there are some exceptions to the statue of frauds rule, it is often times difficult to get around. So, a word to the wise, if you are in the process of selling or purchasing real property in Idaho, make sure you don’t forget to include a proper legal description before the agreement is entered into or you run the risk that the contract won’t be worth the paper it’s written on.

About the Author:

Chad E. Bernards is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at chad@idahoblg.com.

BANKRUPTCY: SHOULD YOU FILE JOINTLY?

2009-10-19T15:15:00.000-07:00

A common question when a married couple considers bankruptcy is whether to include both spouses in the bankruptcy petition. A bankruptcy can be filed by only one spouse, but whether you should file individually depends on several factors. A bankruptcy filing may not give the non-filing spouse the full protection of the automatic stay or the bankruptcy discharge. Below are some factors to consider.

- Community property state? Idaho is a community property state. Generally, assets and debts acquired during marriage are part of the community property, and will be part of the bankruptcy estate even if one spouse files separately.

- Recently married? If you are recently married, and one spouse has separate liabilities pre-dating the marriage, it might be advantageous for the spouse with the debts to file bankruptcy separately.

- Married, but separated? If you can’t get the cooperation of your spouse, you may need to file separate. However, this could put the non-filing spouse at risk. If you own property jointly, a joint filing may be advantageous.

- Generally, marriage alone does not make both spouses liable. Contracts such as home loans or credit cards may be separate liabilities. This will depend on state law where you are filing, and whether the debt was incurred before marriage.

It is generally advantageous for both spouses to jointly file a bankruptcy petition. However, the parties should analyze the facts and circumstances of each case in order to determine the best filing status.

About the Author:

Mike Hall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at mike@idahoblg.com.

The Rise of the Barter Economy -The Boise Weekly

2009-10-16T08:11:00.000-07:00

A recent article by Tara Morgan in The Boise Weekly discussing bartering featured comments by Paul Stark. Here is an excerpt:

In addition to these cumbersome tax requirements, barterers should also be aware of possible legal ramifications. To explain a potentially troublesome bartering situation, business litigation attorney Paul Stark set up a mock scenario: a plumber decides to barter his services with a Web developer.

"So, the plumber receives a benefit, which is the equivalent to income by getting free Web development for his plumbing business. But he has an expense that's going out, which is his plumbing services," said Stark. "As long as those are of equal value so on the fair market value--he does $500 worth of plumbing and he gets $500 of Web developing--there's not a lot of problems because it's for the business and it should essentially be a wash."

But issues start to arise when people begin trading their professional services for personal benefit.

"The problem comes ... when it's not a business service. In other words, the plumber gets his wife's fillings done. That's where you get into trouble because that is a benefit to the individual. At that point, that's where the liabilities can arise," explained Stark.

Which raises the question, when bartering your skills or hobbies outside of the confines of your business, how do you calculate the exact value of your time?

You can find the complete article at The Rise of the Barter Economy.
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About the Author:
Paul Stark is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at paul@idahoblg.com or follow him @pstark on Twitter.

Subordination, Non-Disturbance and Attornment Agreements

2009-10-12T09:44:00.000-07:00

A commercial lease typically contains a provision that requires the tenant’s lease to be subordinate to any current or future lender. This provides the property owner more flexibility with respect to financing. It also puts the tenant at risk in the event of foreclosure, because the lender is not required to recognize the lease and could terminate or attempt to renegotiate the lease. A commercial tenant should know its rights and priority with respect to the lender.

A Subordination, Non-Disturbance and Attornment Agreement (“SNDA”) provides the details for the rights between the landlord, tenant and lender. The SNDA describes when the tenant’s rights are subordinate to the lender’s rights. It also assures that the tenant’s rights will be preserved, or not disturbed, in the event the landlord defaults and the lender forecloses. Finally, the SNDA generally provides that the tenant will attorn to a new landlord. The term “attornment” means the tenant agrees to remain a tenant after a change in ownership

In a normal lease negotiation, the focus tends to be on the financial terms of the lease. The parties should not overlook the importance of an SNDA agreement, especially in the current economic environment.

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About the Author:
Mike Hall is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at mike@idahoblg.com.

Tom Hank's Lawsuit Lives to Fight Another Day

2009-10-02T09:55:00.000-07:00

Just when you thought Tom Hank’s Idaho construction lawsuit got knocked out by the district court in Blaine County, the Idaho Supreme Court’s recent, September 30, 2009 decision allowed Hanks to pick himself off the mat to fight another day in the judicial ring.

In the left corner, Tom Hanks and wife, Rita Wilson as beneficiaries of the Sun Valley Trust, had a home built near Sun Valley, Idaho. In the right corner you have Storey Construction, the construction company hired in 2000 to build the star-studded duo’s home. However, unlike Hollywood films where happy endings are expected, a dispute arose between the parties when construction of the home was nearly complete. In 2003, an arbitration hearing was held (via an arbitration provision in the construction contract) lasting nine days. The arbitrators dealt what at the time was believed to be a devastating knock-out blow to Mr. Gump by awarding the contractor damages exceeding 1.2 million dollars and denying the Hollywood couple’s counterclaims for then unknown construction defects.

Later, during the winter of 2005-2006, Hanks and Wilson alleged water intrusion in the home which was not known at the time of the 2003 arbitration. Accordingly, Hanks and Wilson put the gloves back on and demanded arbitration of the newly discovered defects. The contractor argued that the arbitrator dismissed any claims for defects back in 2003 and therefore barred Hanks and Wilson from raising these claims any further. The district court agreed with the contractor and threw movie star’s claims out.

Down but not out, Hanks and Wilson countered with an appeal to the Idaho State Supreme Court. The Idaho Supreme Court bandaged the eye of Hanks and Wilson by reversing the district court’s ruling and ordering the district court to have the parties proceed to arbitration again in order to hear the construction defect claims that were discovered after the 2003 arbitration. Thus, Hanks and Wilson stay on their feet to duke it out a few more rounds with the contractor. Only time will tell as to who will deliver the final knock-out blow. Was the Idaho Supreme Court’s decision grounded in sound legal reasoning or Hollywood star power? You be the judge.

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About the Author:
Chad E. Bernards is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at chad@idahoblg.com.

3 Essential Elements to a Sucessful Business

2009-09-22T14:08:00.000-07:00

In my experience, there are three absolutely indispensable, essential elements to having success. If you have these three elements, it does not matter what industry you are in, it does not matter how intense the completion is, nor does it matter what the economy is doing (or not doing). You will be successful.

First, you need to be smart. Not genius, just smart. Smart means that you watch where you spend your money. For example, the new attorney should not buy a solid oak desk or a marble conference room table. Smart also means you give some time to marketing, you hire employees when the time is right, and you know your industry. Dumb decisions will sink you.

Second, you need to be hard working. America the Beautiful, apple pie and hard work. It is the bed rock of running a business. Those that think they can make millions without working hard probably actually did a few years ago in real estate. Everyone else has to work at it.

Third, you have to be able to stomach some risk. This is the biggest distinction between those that make it and those that end up working for those who make it. It’s all about risk tolerance. There is gold in them dar hills for those that are willing to take a chance.

If you can take a chance, work hard at it and approach it with a minimal degree of caution and common sense, you can make a successful business. Even in Meridian, Idaho.

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About the Author:

Paul Stark is an attorney at the Idaho Business Law Group, PLLC, located in Meridian, Idaho. You can find him at idahobusinesslawgroup.com, email at paul@idahoblg.com or follow him @pstark on Twitter.