You can do all the planning in the world to protect your business: purchase insurance, keep plenty of cash on hand, retain key employees, the list goes on. But no one plans for what can be the most devastating change to your business: Your spouses serves you with divorce papers.

Protecting the business before divorce (or before you’re married).

The first thing you should know is that how involved your spouse was in operating the business during the marriage is likely irrelevant to any divorce proceedings. Depending on a couple of things (such as when the business was started and what assets were used to launch the business), either the value or assets of the business will be divided between you and your spouse.

Assuming divorce is nowhere near the horizon, here are a few things that need to be in place right now:

1. A pre-nuptial or post-nuptial agreement between you and your spouse that divides all marital property in the case of divorce.

2. Shareholder agreements, a partnership agreement, or an operating agreement. This will depend on the type of business you’re operating (be it a corporation, LLC, or partnership), and also if your spouse is a co-owner.

3. Employment agreements. To help keep key employees around during the turmoil of a divorce.

4. Buy-sell agreement. This can be used to set the price and other terms of buying out an owner of the business (whether it is one spouse buying out the other, or other business partners buying out the owner going through a divorce) in the event of divorce, simplifying things  substantially.

After the divorce is filed.

1. Spend the money and get a professional business valuation. Let’s face it, most business owners don’t have a realistic view of how much their business is worth. Some think their business is about to explode and it is worth 10x their annual revenue. Others see their business as merely an income stream, and were they to stop working the business would be worth nothing, so therefore the goodwill, customer base, and reputation are worthless.

2. Structure the settlement. Most businesses can’t simply make a payout of half of their value and remain operational. At the same time, the spouse who is going to keep the business may or may not be receiving enough other assets to buyout their spouse’s interest in the business. One way to make it work: structure the settlement as a periodic payment. That way the business can remain afloat, and the non-operating spouse receives a stream of income as they transition from working in the business (or not working).

3. Be realistic. Recognize that little can be more harmful to your business or finances than divorce. The faster you can sort through the divorce, the faster you can start to rebuild.

4. Keep working hard. Focusing on your business is the best way to keep your mind off the divorce proceedings.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Divorce Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

The information on this blog is for informational purposes only. The posts are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.

Do both parents have to approve? Can you change a first name and a last name?

My wife is pregnant. Due any day. As you can probably imagine, we’ve spent A LOT of time discussing what to name our soon-to-be-born daughter. Those of you with kids know how fun/stressful this can be.

But what if you name the child, and then decide that you messed up? How do you change a child’s name?

Changing a child’s name is pretty easy if you and your spouse are in agreement.  

1. Prepare a Petition to Change Name.

The State of Michigan form can be downloaded here. The form must be signed by both parents, even if they are not married. The only way you can change a child’s name without the non-custodial parent’s approval is if either (A) That parent has not had contact with the child for 2 years, or (B) that parent has been convicted of child abuse or criminal sexual conduct and the child or the child’s sibling is a victim of the crime.

2. File the petition and serve notice of the hearing.

Names are a very personal thing, and the court has decided that if you want to change your name, you have to notify the world to show that you’re not doing so with “fraudulent intent.”

Interestingly, an adult with a criminal record is presumed to have “fraudulent intent” and must prove to the court why he or she does not before the court will grant the name change petition.

A person having a similar name to the name proposed by the petitioner can intervene in the name change proceeding to show fraudulent intent.

3. Attend the hearing, with the child.

Regardless of the child’s age, the judge is going to ask them if they approve, and consider their wishes if they’re old enough to state them. If the child is 14 or older, a parent cannot change their name without the child’s consent.

4. Record the name change.

Assuming the judge grant’s the name change, you then have to file a new record with the Michigan Department of Community Health. The form for doing so is here.

What if the other parent won’t consent to changing the child’s name?

In Michigan, if the parents are not married at the time the baby is born, the mother gets to choose the child’s last name.

If the mother chooses the father’s last name, and then later wants to change it, she will have to petition the court to show why changing the name is in the best interest of the child.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

The information on this blog is for informational purposes only. The posts are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.

Can a company face criminal charges? How does that work? Can a company go to jail? Do their employees go as representatives?

We all hear stories about companies behaving badly and getting sued for their actions. Most of the time, this is handled through civil litigation. If a court finds that the company was in the wrong, then the company is forced to financially compensate the victims.

But what happens when a company or its employees break a criminal law? Can a prosecutor file criminal charges against a company? And if they are found guilty what can the court do? Send the entire company to prison? Send company executives or shareholders to prison?

In situations like the Deepwater Horizon oil spill, where a company’s actions lead to injuries, death, and environmental disaster, the government can file criminal charges agains the company as a whole. The government investigates the criminal actions of the company’s employees, and as long as those criminal actions were within the scope of that employee’s job responsibilities, the company can face criminal liability.

Actions of employees that extend beyond the ordinary scope of their employment generally cannot be imputed on the company.

In addition to the criminal charges against BP, three employees are charged criminally.  Deepwater Horizon rig site leaders Robert Kaluza and Donald Vidrine and former BP vice president of exploration for the Gulf David Rainey pled not guilty to criminal charges. They could face jail time and fines if found guilty.

Looking specifically at the Deepwater Horizon oil spill, BP was charged with felony misconduct and negligence, felony obstruction of Congress, and misdemeanors under the Migratory Bird Treaty Act and the Clean Water Act. The Federal Government also charged BP with criminal manslaughter under the Seaman’s Manslaughter Act.

BP agreed to plead guilty and will pay $4 billion in a settlement agreement to various government agencies including the Securities and Exchange Commission, the National Fish and Wildlife Foundation, and the National Academy of Sciences.

But can the company go to jail? No.

Can the company send executives or shareholders to jail for the company’s actions? No.

The government is limited to financial and other equitable remedies, but cannot send an entire company to jail. With that said, prosecutors can bring criminal charges against company employees individually, if their actions warrant it.

Why should companies and their employees be criminally charged when victims already have the right to bring civil suits?

The first reason is cost – civil litigation can be a long and expensive process, and one that it often incredibly inefficient for an individual who is trying to go up against a company. The government, who is responsible for bringing criminal charges, doesn’t face those same issues.

The second is muscle – in a criminal investigation, the government can empanel a Grand Jury, something not available to civil plaintiffs. The prosecutor can hold grand jury investigations and force company employees to testify in front of a jury without the company’s lawyer present. Grand Jury testimony often provides a much better understanding of what really happened and who is responsible.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

The information on this blog is for informational purposes only. The posts are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.

In my work as an estate planning attorney, I get asked the following question all the time: Who do you recommend we choose as the guardian for our kids? It’s a hugely important question, and for many young families, the single biggest reason they put together an estate plan is to name a guardian for their kids.

So how do you go about choosing a guardian? For some people, the answer is obvious. Most people, but certainly not all, wind up choosing a sibling or parent or other family member to be the guardian. Maybe you have younger parents who live in the same city you do and are very involved in your child’s life. Or maybe you and your spouse have only one sibling between you that is stable enough to raise a child. 

For some, there are many great options, and it is a tricky situation deciding who is best. For others, there isn’t a great choice out there. So how do you choose a guardian? 

1. Think about what is important to you.

In order to begin this discussion, you need to determine what qualifications you’re looking for. To do so, think about the following:

Do you want your children to be raised by a member of their immediate family? Are you concerned that moving to a new city would be difficult? Are you concerned about parenting style? Do you want the guardian(s) to share your religious views?

Before you can decide on a guardian, you need to know what you want that guardian to be. Answering these questions is a good starting point.

2. Think about capability.

Once you and your partner have come up with a list of characteristics you’re looking for in the guardian, next you need to look realistically at the people on your short list and think about whether or not they’re capable of handling the responsibility of raising a child.

How old are they? How old will they be when your child goes to college? Do they have kids of their own? Are they planning to? Are they financially stable?

3. My family vs. your family.

This discussion comes up all the time — how do you choose between your parents and your spouse’s parents? Or one of your siblings and one of your spouse’s siblings? There isn’t a silver bullet answer for this question, but there are two effective ways of dealing with this issue:

(1) Talk to the people you’re considering and see how they feel about becoming a guardian. Sometimes you find that the people you were sure would be willing to do so simply aren’t. Other times, by talking about this issue, you’ll realize that your sibling/parents aren’t as up for the task as you thought.

(2) Name both. This isn’t ideal, but sometimes it is the easiest way out of a messy family situation. Name all of the child’s living grandparents as the guardians, and let them sort out what the arrangement looks like after you’re gone.

4. When immediate family is not an option.

For some people, parents and siblings simply aren’t the right choice. So what can you do? Think outside the immediate family box. What about close friends? Or an aunt/uncle or cousin? Go back to the discussion you had about what is most important to you and see if there is a person or a couple that meets your criteria outside of your parents/siblings.

5. Talk to them. 

This is the one part of the process that most often gets overlooked. Whoever you’re seriously considering naming as your guardian, talk to them about it. Obviously you need them on board in general, but talk to them specifically about what your expectations would be, and determine if this person can meet them. Most people begin this conversation after they’ve already decided whom they want to select. I always suggest starting this process early so that you have as much information as possible while trying to make this important decision.

6. Recognize that things change — and that’s ok. 

When you name a guardian in your will, that designation lasts forever. Or until you change it. I recommend to all my clients that every few years we check in to make sure that everyone is still on the same page. It also serves as a good reminder that it is fine to name one person now, and then change in a few years.

For example, you might have an infant now, and want your parents to be the guardians should something happen. But in 10 years, your 10 year old might not be such a good fit with your aging parents — remember that they’ll be 10 years older as well.

Or, you might have one child now, but have more (planned or not) down the road. The discussion is different when you’re naming a guardian for one child or four. Same goes for the family you’ve named as the guardians — what if they have triplets? Or get divorced? You’ll want to revisit this issue every time there’s a change in your life, or the lives of your named guardians.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

With April 15 approaching, people are starting to think about taxes. So what happens if you settled a lawsuit this year? Do you have to pay taxes on your legal settlement? 

Well, it depends on what the settlement was for. The IRS generally breaks legal settlements down into 2 categories: (1) Legal settlements to compensate for physical injuries, and (2) Everything else (non-physical injuries, lost wages, business issues, etc.).

Legal settlements resulting from physical injuries.

Legal settlements resulting from physical injuries are not considered taxable income. So if you get in a car accident, sue the other driver for your injuries, and win, your award will not be considered taxable income. Additionally, if your award includes lost wages, medical bills, or other compensatory damages, those amounts also are not considered taxable.

Legal settlements for personal claims.

What if you sue your business for wrongfully termination? That settlement is taxable. And, intuitively, that makes sense — you feel like you should have been paid your wages, but you were fired instead, so you sued. Had you not been fired, you would have received those wages (and paid taxes on them). So the settlement is putting you back into the place you would have been without the wrongful act of your employer – tax liability and all.

What about severance pay?

Is severance pay taxable income? Sure is. The IRS treats it as ordinary wages.

What about for a business? 

Let’s say you’re run your own small business as an LLC or corporation — if you sue someone for not paying you for your serves, and win (or reach a favorable settle), does the business have to count that as taxable income? Yes. The IRS will see that settlement as a replacement for the income you would have received had the other party simply paid your

Now, not every business lawsuit will result in a taxable settlement. What if your business owns the building in which you operate, and someone crashes their car through one of the walls? A settlement for property damages is generally not taxable. So if you receive a settlement to cover the repairs, that amount is likely not taxable income (with some limitations depending on the value of the building in comparison with the amount of the settlement).

Note: If you received a settlement in 2012, be sure to talk with your accountant about how to report it on your taxes. Do not rely on the information in this article as a substitute for having your personal situation reviewed by a qualified tax professional.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

Ever since the tragic events at Sandy Hook elementary in Connecticut, gun laws have, understandably, been a popular topic of debate. So today let’s get a little education on Michigan’s gun laws. Specifically, Michigan’s concealed weapons laws (also known as concealed carry laws). To do so, we’ll answer these questions:

How do you get a concealed carry permit in Michigan? Are there places you cannot carry a concealed weapon? Can you carry a concealed weapon drunk? Can my wife transport my concealed weapon?

How do you get a concealed carry permit in Michigan?

As you would expect, there are quite a few rules regarding obtaining a permit to carry a concealed weapon in Michigan.

You have to be 21 years old, a U.S. citizen, a Michigan resident for at least 6 months, and you have to complete a pistol safety training course.

You can’t get a concealed carry permit if you’ve ever been subject to an order of involuntary commitment in an inpatient or outpatient setting due to a mental illness, or if you have a diagnosed mental illness at the time the application is made, regardless of whether you’re receiving treatment.

You must undergo a criminal background check. If any of the following are true, you are not eligible:

1. You have been convicted of a felony.

2. In the previous 8 years, you were convicted of certain misdemeanor offenses, including assault, OWI-2nd, reckless driving, and any firearms-related crimes.

3. In the previous 3 years, you were convicted of certain misdemeanors, including OWI, 2nd degree retail fraud, disorderly person, or receiving stolen property.

This is a snap shot of the rules. For a full list, including all of the crimes that can render you ineligible, click here.

Where can I NOT carry a concealed weapon in Michigan?

1. Schools or school property but may carry while in a vehicle on school property while dropping off or picking up if a parent or legal guardian
2. Public or private day care center, public or private child caring agency, or public or private child placing agency.
3. Sports arena or stadium
4. A tavern where the primary source of income is the sale of alcoholic liquor by the glass consumed on the premises 
5. Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official or officials allow concealed weapons
6. An entertainment facility that the individual knows or should know has a seating capacity of 2,500 or more
7. A hospital
8. A dormitory or classroom of a community college, college, or university
   
9. A Casino

Can you carry a concealed weapon drunk?

No. Michigan law prohibits carrying a concealed weapon while under the influence of alcohol. If you are caught carrying a concealed weapon with any amount of alcohol in your body, the weapon will be confiscated and you’ll face the following penalties, depending on your blood alcohol content:

• BAC of .02 – .07 = State civil infraction, $100 fine, and up to 1-year CPL license revocation.
• BAC of .08 – .09 = 93-day misdemeanor, $100 fine, and up to 3-year CPL license revocation.
• BAC of .10 or more = 93-day misdemeanor, $100 fine, and permanent CPL license revocation.

Can I transport a concealed weapon in my car?

Yes you can transport a concealed weapon in your vehicle for a “lawful purpose.” “Lawful purpose” encompasses the following:

• While en route to or from a hunting or target shooting area.
• While transporting a pistol to or from home or place of business and a place of repair.
• While moving goods from one place of residence or business to another place of residence or business.
• While transporting a licensed pistol to or from a law enforcement agency for the purpose of having a safety inspection performed (registering the pistol) or to have a law enforcement official take possession of the pistol.
• While en route to or from home or place of business to a gun show or place of purchase or sale.
• While en route to or from home to a public shooting facility or land where the discharge of firearms is permitted.
• While en route to or from home to private property where the pistol is to be used as permitted by law, rule, regulation, or local ordinance.

In order to transport your concealed weapon in your car, the weapon must be unloaded, in a closed case, in the trunk. If you’re driving a truck or other vehicle without a trunk, the pistol can be in the passenger compartment of the vehicle, so long as it is unloaded an inaccessible to the vehicle’s occupants.

Can my wife drive my car if the weapon is concealed in the trunk?

Yes — but only if you are in the vehicle.

If not, then your wife would be guilty of a felony for carrying a concealed weapon.

As you can see, concealed weapons law is serious business. Don’t carry your concealed weapon if you’re going to be drinking. Don’t let someone else drive your car with your concealed weapon in your trunk (unless you’re riding along), and be sure to check the local rules before carrying in an unfamiliar public place.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

The information on this blog is for informational purposes only. The posts are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.

I do all of my estate planning work on a flat-fee basis. So when we sit down to talk about your estate plan, you’ll know exactly how much it will cost. No extras, no surprises, no hidden costs. 

If you’re ready to rest easy, knowing that your family will be taken care of should something happen, contact Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com or by filing out the “Contact Me” form on this page.

Do you need an estate plan? That depends…

1. Do You Want To Protect Your Kids?

An estate plan allows you to appoint a guardian for your kids in the event that you and your spouse pass away.

2. Do You Want To Protect Yourself?

Who will make medical decisions for you in the event that you can’t make them for yourself? What about decisions regarding your finances? Having a health care directive and power attorney in place allows for your wishes to be considered should you become incapacitated.

3.Do You Want To Protect Your Assets?

Dying without a will is costly and creates unnecessary hardship for your family. Dying without a will means that a court distributes your assets – and you have no say in the matter. Plus, without a will your family will have to spend time and money working with an attorney and the court trying to sort everything out.

You need an estate plan to protect your children, yourself, and your money.

If you’re ready to take the first step towards securing your future, or have any questions, please contact Grand Rapids Estate Planning Attorney Todd Neckers at (616) 422-5082 or email contact@neckerslaw.com or fill out the “Contact Me” form on the right this page.

I do all of my estate planning work on a flat-fee basis. So when we sit down to talk about your estate plan, you’ll know exactly how much it will cost. No extras, no surprises, no hidden costs. 

If you’re ready to rest easy, knowing that your family will be taken care of should something happen, contact Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com or by filing out the “Contact Me” form on this page.

Do you need an estate plan? That depends…

1. Do You Want To Protect Your Kids?

An estate plan allows you to appoint a guardian for your kids in the event that you and your spouse pass away.

2. Do You Want To Protect Yourself?

Who will make medical decisions for you in the event that you can’t make them for yourself? What about decisions regarding your finances? Having a health care directive and power attorney in place allows for your wishes to be considered should you become incapacitated.

3.Do You Want To Protect Your Assets?

Dying without a will is costly and creates unnecessary hardship for your family. Dying without a will means that a court distributes your assets – and you have no say in the matter. Plus, without a will your family will have to spend time and money working with an attorney and the court trying to sort everything out.

You need an estate plan to protect your children, yourself, and your money.

If you’re ready to take the first step towards securing your future, or have any questions, please contact Grand Rapids Estate Planning Attorney Todd Neckers at (616) 422-5082 or email contact@neckerslaw.com or fill out the “Contact Me” form on the right this page.

What about settling a minimum transaction fee? Is that legal?

A lot of gas stations and convenience stores have signs like the one below — no credit cards under a certain dollar amount. If you’re like me, you’ve experienced the joy of reaching the cash register with your diet coke or pack of gum only to leave the store empty handed because you had no cash on hand and the store wouldn’t accept your credit card without the requisite $10 purchase.

Additionally, depending on where you live and how old you are, you may know of a number of stores (most often gas stations) that offer a “cash discount” — if you pay your bill with cash. The discount is typically 2-3% off the purchase price. Also, you may know of stores where there is a credit card surcharge — normally 2-3% of your total bill.

So are these practices legal? Can companies charge you to use a credit card? Can companies offer cash discounts? What about the minimum charge amounts, are those legal?

In fact, the rules have changed very recently, and all of these practices are now legal, with some limitations. 

Can companies charge you for using a credit card?

Yes, companies can now impose a fixed surcharge for every credit card transaction. So you may start seeing a $2.00 fee added to your bill every time you use your credit card.

However, there are laws in certain states (California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas) that still limit allowable credit card surcharges.

Can companies charge you for using a debit card?

No. Unlike credit cards, companies cannot impose a surcharge for using a debit card.

Can companies offer cash discounts?

Yes. In the past, the rule was that you had to advertise the credit card price, and then offer a discount to those using cash — as opposed to posting the cash price and charging a fee to those wanting to pay with a credit card. Now, however, discounts can be offerred for any payment method, so long as they are made clear to the consumer.

Can companies set a minimum charge amount for credit cards?

Yes, companies can now set a minimum charge amount of not more than $10 for credit card transactions.

This formerly was not the case — for a long time the service agreements between the major credit card companies and retailers did not allow for minimum charge amounts, and the many retailers who imposed them were in violation of their

Can companies set a minimum charge amount for debit cards?

No. Unlike credit card purchases, companies cannot impose minimums on debit card purchases.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.

Blog readers — note that there is now an option to receive new posts automatically via email. 

So how does maternity leave work?

What are the legal requirements of maternity leave? Is every company required to offer it? What does it protect? Will I get paid?

For any family expecting a new baby, part of the planning will involve considering if the mother and/or father will take time away from work after the baby is born. This is typically referred to as maternity leave or paternity leave. The number thrown about most frequently is taking 3 months off. Why is that? 

Maternity Leave and the Family Medical Leave Act

In 1993, Congress passed the Family Medical Leave Act (FMLA). This statute entitles most employees up to 12 weeks of job-protected leave after the birth or adoption of a child. There are some limitations, however:

1. It only applies to companies with 50 or more employees.

2. You must have worked for that company for at least 12 months.

3. You must have worked at least 1250 hours (about 24 hours per week) in the last year.

4. The leave is unpaid.

Despite these limitations, the FMLA is a powerful statute — so long as you meet the above requirements, your company cannot fire/demote you for taking a full 12 weeks off after the birth of your child.

Paternity Leave

FMLA leave is gender-neutral. While it is certainly more common for the mother to take an extended period of time off, the father can do so as well.

Adoption

The FMLA treats natural births and adoptions exactly the same.

Small Companies

If your company is not covered under the FMLA, then the availability of maternity/paternity leave is completely up to your employer. While many small businesses offer some amount of paid or unpaid time off after the birth or adoption of a child, some do not. If you work for a small company and pregnant, or thinking about having a child, now would be a good time to find out what your employer will provide.

It is also worth pointing out that the FMLA is not only for the birth of a child. If you meet the requirements listed above, you can take up to 12 weeks off to care for a family member with a serious medical condition, or if your health requires you to be away from work.

If you have questions about this article, or there are other legal issues you need help with, contact Grand Rapids Attorney Todd Neckers at (616) 422-5082 or contact@neckerslaw.com.