Starting a New Business? Don’t Skip a Step
Many entrepreneurs are discovering opportunities to start new business ventures even in these uncertain economic times. They dutifully do their homework by spending hours focusing on the business plan and issues related to the new business. They focus on raising start-up capital, choosing a location, and formulating a plan for client development — all the while, most of these entrepreneurs continue working their “day” jobs to in order to pay the bills. All too often, however, these budding business owners skip one critical step during the planning stage: Taking time to discuss the proposed venture with competent business legal counsel.
Because many of these entrepreneurs have prior business experience, or perhaps because the internet offers a multitude of boilerplate forms to create the entities, the owner mistakenly sees the attorney as an unnecessary step in the process. The painful effects of this decision may be felt as early as the following tax season, due to the improper choice of entity that was created; or it may not be felt until years later when the business ends up in litigation that could have been avoided with better planning.
The failure to seek the necessary legal advice early in the life of the business can seriously undermine the potential future successes the business and the owner would otherwise enjoy. Consulting with legal counsel during the company’s infancy can actually reduce the chances of needing a lawyer after-the-fact. Why? The business attorney can work alongside the owner and his or her tax consultant to establish a strong foundation from which to build. Some of the issues that can be addressed effectively at this early stage include the following: Whether to incorporate; the choice of entity; tax issues and options; establishing internal policies and procedures to safeguard company assets; negotiating and finalizing vendor contracts; and developing and implementing an employment manual, among others.
Even though these benefits alone should more than justify the expense of counsel, there is still an even greater benefit counsel offers during this time. Virtually every business develops and uses shell contracts and forms necessary to conduct its daily commerce. Hiring a professional to draft, review or edit these business forms in the light most favorable to the company can be invaluable. The attorney can include the legal language necessary to help avoid litigation, such as clauses that limit the company’s liability, require mediation before suit, dictate the venue of where suit must be filed, and require indemnification from the other party to the contract. The point is that the business owner has the opportunity to build in language that proactively prevents or minimizes the typical problems can later arise.
If you are considering starting a new venture in these challenging times, your most important stop could very well be to your business lawyer’s office. Don’t skip a step.
How to Handle a DWI Stop.
Well, do you? Did you know the rights given to you by the Federal Constitution can be expanded by your individual State Constitution? Do you know how to enforce your constitutional rights? Most Americans know they have rights; they just don’t know what those rights are. Never is this more evident than during encounters between the public and the police.
After practicing criminal law for fourteen years, it seems to me that now, more than ever, people are under informed or just plain misinformed about their rights and how to interact with the police. The average person has more incorrect beliefs regarding their constitutional rights than the Federal Government has holidays. That ignorance almost always negatively impacts the average citizen. This situation cannot be remedied easily, but a few simple rules can help place you on the path to knowing and exercising your rights.
- You have the right to remain silent, use it.
Believe it or not, most people get arrested because of what they say, not because of what they have done. If you are stopped by an officer all you must do is identify yourself. Where you are coming from, what you have been doing, and where you are going is none of his or her business. Everything you say and do in the presence of an officer is recorded. Don’t try to talk yourself out of a ticket only to get arrested for a greater offense. - You have the right to be free from unreasonable searches and seizures.
Pretty much any search of your person, car, or house without a warrant is unreasonable. Never agree to allow the police to search your car. You have no idea what someone may have left in your car and you will be held responsible for anything the police find. - Field sobriety tests are voluntary – don’t take them.
If the officer asks you to “take a few tests to make sure you are ok to drive,” you need to exercise your rights and just say no. The officer already believes you are intoxicated and is just looking to get you on video. These tests are not designed to test-driving skill and are not accurate at determining intoxication. Even when administered under perfect conditions, in a lab, with healthy young subjects, these tests have been shown to produce false positive indications of intoxication. None of these tests are used by doctors or in clinical situations and the medical community does not recognize them as accurate indicators of intoxication. If doctors don’t believe in them, why should you? - Always ask for an attorney.
When you have a problem with your health, you call a doctor. When your problem involves the law, call an attorney. In most cases, asking for an attorney will stop further questioning from law enforcement and give you the time and access to the information you need to make good legal decisions.
Have more questions? Contact us. We have the answers.
What is the Difference Between Community Property and Separate Property?
As many people know, Texas is a community property state, however most people are confused about what actually constitutes community property and separate property. Separate property generally consists of property owned by a person before marriage; property acquired by a party by gift or inheritance during the marriage; and personal injury damages for injuries sustained during the marriage (e.g. money damages for injuries from a car accident). Recovery for loss of earning capacity during the marriage is not considered separate property. Any other property possessed by the parties during the marriage is presumed by the court to be community property, unless a party proves by clear and convincing evidence that it is separate property.
Community property laws can cause a lot of confusion because of common but mistaken beliefs. For example, having an asset, such as a bank account or an automobile, titled in one person’s name does not necessarily make it separate property. If the bank account was funded by money earned during the marriage or if the automobile was purchased during the marriage using money earned during the marriage then it is still community property. The nature of the property is not affected by having only one party’s name on it.
Quite frequently, clients think that their individual retirement account or 401(k) plan through their employer is separate property. However, if part or all of the funds in those retirement accounts were earned during the marriage, then at least of portion of the retirement is community property.
Occasionally, people have property that is a “mixed-character” asset. For example, both separate funds and community funds were used as a down payment to purchase the marital residence. The property would be partly separate property and partly community property.
Another common occurrence is for spouses to “comingle” separate and community monies. For example, one spouse had an account prior to marriage that had a substantial sum of money in it. After marriage, the parties used the same account as the general household account and deposited their paychecks into it. This is now a comingled asset. Some portion of it may still be the spouse’s separate property – if you can trace it -- and another portion may be considered community property.
The bottom line is that if you come into a marriage with separate property or if you are given separate property during the marriage, it is important to keep good records from the date of marriage forward. You may need those records in the future to prove what is separate property and community property.
