To Prenup or not to Prenup?
What is a Prenuptial Agreement & How Does It Work?
Unfortunately, the stigma typically associated with prenuptial agreements prevents a plethora of couples from discussing the significant legal benefits of premarital contracts. Many legal professionals are of the opinion that these contracts are integral to a marriage because they can address potential issues such as debts, financial planning, interfaith, disputes, and property division in the event of death or divorce.
What is a Prenuptial Agreement?
A prenuptial agreement is a legally-binding contract that is signed into effect before marriage. A prenuptial agreement typically determines how you and your partner would divide your financial responsibilities and assets (property, money, bill payments, debt, etc.) in the event of a divorce, separation, or death.
Do I need a Prenuptial Agreement?
You might be surprised to find out that despite your level of income or assets, you may need a prenuptial agreement. Many people do not consider signing a prenuptial agreement because they wrongfully presume that such agreements are only appropriate or pertinent for wealthy individuals or couples. Others fail to notice the option of executing such an agreement simply because the conversation is an unfavorable one to discuss and they do not want to risk offending their future partner. As a matter of fact, people of all income levels can benefit from a prenuptial agreement and it can be done in an amiable way with the cooperation and knowledge of both parties.
A prenuptial agreement should not be viewed as an expectancy to be divorced or separated, but merely as a means of preparing for the future and protecting both parties in a worst-case-scenario. It is no secret that the divorce rate in the U.S. is relatively high. Consequently, more couples are choosing to protect themselves with prenuptial agreements today than ever before.
On the other hand, a postnuptial agreement is done after the parties get married. A postnuptial agreement is designed to achieve the same goals as a prenuptial agreement. These goals delineate the terms of the divorce, as opposed to a judge dictating the distribution of your assets and the amount of alimony.
What Happens If You Don't Make a Prenup?
If you don't create a prenuptial agreement, your state's laws decide who owns the assets that you procure during your marriage, as well as what happens to those assets at divorce or death. State law may even have the right to determine what happens to some of the assets you owned before you were married.
Making a Valid Prenup
As divorce and remarriage have become more common, and with more equality between the sexes, courts are more inclined to uphold premarital agreements. Today, every state allows them, although a prenup that is judged unfair or otherwise fails to meet state requirements will still be cast aside.
However, because courts still look cautiously at prenups, it is important that you negotiate and write up your agreement in a way that is clear, understandable, and legally sound. It is also important to get a prenup out of the way early on in your engagement, so any contentious feelings that may arise can fade in time for you to celebrate your wedding. If you are engaged and would like to speak with someone to see if a prenuptial agreement is right for you, please call us today. Please call: (954) 361-5370 or email us at colin@colinblackwood.com.
What are the Benefits of Establishing a Florida Land Trust?
Are you seeking a low-cost solution for privacy and asset protection for your real estate in the state of Florida?
Then considering obtaining a Florida Land Trust!
There are a few ways to own property in Florida. Most citizens just own it outright - their name are discoverable on Florida’s county deed records for all to see. However, what if there exists another way to own property, one that gives you more privacy and protection? Read on to learn more about the benefits gained by establishing a Florida land trust.
The Florida Land Trust is an affordable and uncomplicated method for holding legal title to real estate, whether you are a US citizen or foreigner. The Florida Land Trust is a fully revocable grantor trust drafted specifically to buy, hold, finance, and sell Florida real estate in a confidential or private manner in accordance with the Florida Land Trust Act.
There are quite a few benefits of buying and holding property in a Florida Land Trust. The most customary option is to keep your ownership interest in Florida real estate confidential and private. Holding property in a Florida Land Trust also lessens most of the liability associated with real property ownership while simultaneously maintaining most of your rights of ownership including, legally claiming the Homestead exemption if the property is your primary residence.
Who Can Create a Florida Land Trust?
The Florida Land Trust can be created and used by any individual, any group of individuals, any general partnership, any limited partnership, any other revocable or irrevocable trust, another trustee or trust services provider such as an out-of-state trust company or bank, any limited liability company (LLC), any corporation, or any other type of business establishment.
The person or legal entity that established a Florida Land Trust is typically referred to as the Trustor, Grantor or Settlor ("Trustor"). The Trustor is generally the Beneficiary as well.
What are the Advantages of Using a Florida Land Trust?
Security: You can be certain that your interests in the property won’t be partitioned with a land trust (i.e sold or split). It is also simple to transfer beneficial interests.
The Beneficiary’s Privacy: In a land trust, the interests of beneficiaries are private. Fundamentally, they can’t be revealed without a court order. There are also no public records documenting the beneficial interests.
Asset Protection: The beneficiaries of a land trust are not liable, solely by being beneficiaries, under a judgment, decree, or order of court or in any other manner for a debt, obligation, or liability of the land trust. Furthermore, a judgment against a beneficiary will not be associated with the underlying land held in the trust.
Continuity: A beneficiary’s death doesn’t terminate the trust in a Florida Land trust. There can even be testamentary dispositions (any gift of any property by a testator under the terms of a will) in the trust.
Homestead Protection: With Florida Land Trusts, you can safeguard your property with homestead exemption. However, the beneficiary has to be ordinarily eligible for homestead protection.
Each of the above referenced benefits is highly dependent upon your unique situation. For a complimentary and confidential consultation with an experienced Florida real estate lawyer, please call our office at: (954) 361-5370 or email us at colin@colinblackwood.com.
Company Shareholders’ Direct Claims - Protecting the Rights of the Shareholder
Are you a shareholder who wants to redress the harm done by your company’s directors/executive officers?
Then you should consider filing a shareholder’s direct claim.
Continue reading more below.
Similar to shareholder derivative claims, the potential grounds for filing a direct lawsuit are numerous as well, ranging from illegal acts by individual directors and in our last blog post we explored shareholder derivative claims and how a shareholder may seek to redress harm done by his/her company’s director/executive officers. The question then arises, “how can a shareholder seek to rectify harm that was done to shareholders themselves.”
A shareholder may directly sue the company, an executive officer, or director if one of these individuals take actions resulting in direct harm to the shareholder. This is a shareholder direct claim. This situation is rare because it’s difficult for a shareholder to prove that he/she has suffered a specific harm as a result of actions by the executive officers or directors. However, unlike shareholder derivative litigation, if you are successful in filing a direct lawsuit, then any damages will be awarded to you personally as compensation for your shares’ loss of value. Some examples of direct suits involve contract rights related to shares, rights related to the recovery of dividends, and rights to review the records of the corporation.
“What is the difference between a shareholder direct claim and a shareholder derivative claim?”
Direct claims are based on legal rights that belong to the individual shareholder. The plaintiff shareholder brings his own claim in his own name to substantiate the violation of legal duties to himself and seeks a legal remedy for his own benefit. On the other hand, the cause of action in a derivative claim belongs to the corporation, not the shareholder. You can ask yourself the following:
1) Who is being harmed: the corporation or the shareholder?
2) Who would receive the benefits of recovery: the corporation or the shareholder?
If the answer to either of these questions is “the shareholder,” the claim will likely be considered direct. If the answer to either of these questions is “the corporation,” the claim will likely be considered derivative.
Courts have adopted the “special injury” test to determine whether a claim states a direct or a derivative action. An individual plaintiff is required to show that the injury suffered is separate from the harm suffered by the shareholders generally or that its contractual rights as a shareholder are involved, e.g., the right to vote.
Book a consultation with us
Our attorneys represent clients in Miami, Florida in shareholder direct lawsuits and derivative litigation against corporate officers, directors and majority shareholders. If you have questions and would like to speak with an attorney, please call (954) 361-5370 or email colin@colinblackwood.com.
Company Shareholders’ Derivative Claims - Protecting the Rights of the Shareholder
Are you a shareholder that wants to redress the harm done by your company’s directors/executive officers?
Then you should consider filing a shareholder derivative claim.
Continue reading more below.
When you invest your hard-earned money in a corporation, you do so with certain expectations. One of those rights is the right to initiate a “derivative action.” A derivative action is a lawsuit that is filed by a shareholder on behalf of the corporation to enforce a corporate right or to prevent or remedy a wrong to the corporation where the corporation, because it is controlled by the wrongdoers or for other reasons, fails and refuses to take appropriate action for its own protection.
Although the board of directors and appointed executive officers run the day-to-day operations of the company, they essentially serve at the pleasure of the shareholders.
Why are derivative suits filed?
This happens when the directors and executive officers are themselves harming the company. These directors and executive members will never sue themselves. In these circumstances, the law allows individual shareholders to file a lawsuit against the directors and officers to rectify the harm done to the company. The individual shareholder stands in the shoes of the company and derives his or her right to sue (hence the name derivative) from the rights of the company itself.
Examples of misconduct that might give rise to a shareholder derivative lawsuit can include, but are not limited to:
Breach of fiduciary duty;
Fraud or other unlawful activity;
Self-dealing or greed by insiders;
Conflict of interest;
Waste of corporate assets;
Accounting wrongdoing;
Inflated, false, or misleading financial statements;
Inflated executive compensation; and
Management or board decisions that expose the company to harm, violate consumer protection or other laws.
What Are the Benefits of a Shareholder Derivative Action?
Most successful shareholder derivative actions produce meaningful corporate governance improvements that are intended to prevent future wrongdoing and increase shareholder value. For example, in a case involving allegations of accounting fraud, the lawsuit may result in the company committing additional resources to oversee its accounting department and outside auditors.
In general, the plaintiff in a shareholder derivative lawsuit does not seek financial compensation, but instead seeks to protect his or her long-term investment in the company by imposing meaningful corporate governance reforms and management changes. If a lawsuit does seek monetary damages (for instance, in a case involving an executive who embezzled corporate assets), any financial recovery obtained goes to the corporation rather than the individual shareholders.
Requirements for Bringing a Shareholder Derivative Action in Florida
In most jurisdictions across the United States, a shareholder has to fulfil various statutory requirements to prove that he has valid standing to bring a derivative action against the officers and directors, the most important of which is that the shareholder continuously held stock at some time during the period of time in which the company is being accused of fraud, negligence, etc., and that shareholders bringing the derivative actions agree to continue to hold their stock throughout the derivative litigation to preserve their interests in the outcome of the litigation. Other requirements to bring a shareholder derivative action include:
The shareholder must fairly and adequately represent the interests of the corporation.
The shareholder must have been a shareholder at the time the alleged misconduct or illegal activity occurred, or received his or her shares from a shareholder who was a shareholder at that time (such as through an inheritance).
Prior to bringing a lawsuit, the shareholder must first make efforts to rectify the situation with the corporation directly outside of court, and his or her court filings must state specifically what efforts were made, or else explain why no such efforts were made.
Additionally, once a shareholder brings a derivative action to court, he or she is generally obligated to see the action through to the end without settling the case. The court’s permission is usually required to settle the case or otherwise remove it from the court’s calendar, and other shareholders who could be affected are usually required to be notified.
For years, Colin Blackwood, Esq. has represented many of his clients in various aspects of business litigation. Here, in Florida, Colin Blackwood, Esq. is recognized for his expertise in litigation and for the aggressive representation of his clients.
How to file a Personal Injury Claim
Have you been injured in an accident and require compensation for medical bills and other expenses?
Then you should consider filing a personal injury claim. Continue reading more below.
A personal injury claim case covers any situation in which someone’s negligence or actions cause you to suffer an injury. The most common cases are:
Slip-and-fall or trip-and-fall accidents
Motor vehicle accidents
Medical malpractice
Wrongful death
Birth injuries
Accidents on rental property and commercial property
Dog bites and the associated risk of infection, scarring and nerve damage
Filing a personal injury claim can be quite time-consuming. An experienced lawyer who specializes in personal injury claims can effectively guide you through the process so you can concentrate on healing and getting back to normalcy as quickly as possible.
You will hear the term damages being used quite often when filing a personal injury claim. Your attorney should help you to understand what the term damages mean and how they apply to you. Damages are the costs and losses you face after suffering a personal injury. These include:
Expensive medical bills
Lost wages or a diminished working capacity
Property damage
Childcare costs
Transportation costs
A breakdown of fellowship with your husband or wife also known as loss of consortium
A personal injury claim attorney can help determine what damages apply to you based on the details of your case and help to recover compensation for these losses.
If you are seeking compensation for injuries sustained in an accident, here is a step by step guide on how to file a personal injury claim.
Step 1: Seek Medical Treatment
Whether or not you are interested in filing a personal injury claim, the most important thing to do after an accident is to seek medical treatment. This applies even if you’re not feeling pain or have physical injuries. In many cases, associated pains don’t occur until weeks after an accident.
If you do not seek medical treatment immediately or very soon after an accident, you could severely hurt your chances of being compensated should you decide to file a personal claim injury. The at-fault party’s insurance company may call into question the severity of your injuries given that you didn’t seek medical attention quickly.
Step 2: Report the accident and the injury sustained
Based on where you have had the accident, you must let relevant persons or the authority know that you have been injured. Report injuries sustained at the workplace to the employer. If you are a victim of a motor vehicle accident, the police should be notified. In case you have received injuries in a public space, report it to the concerned local authority.
Step 3: Find and speak with an experienced personal injury attorney
Give yourself the best chance of getting compensation for personal injury by speaking with an experienced attorney. Bear in mind that speaking with an attorney is different from hiring one. Therefore, you have nothing to lose in getting solid advice before you make a claim. Most attorneys will be happy to provide an initial free consultation where they can discuss the details of your case and outline your legal options.
It is important to speak with one as soon as possible after the accident because of the statute of limitation. This limits the amount of time you have to file a lawsuit.
No matter how small you consider your injury, if you require compensation, you should consult with an attorney.
Step 4: Decide if you want to file a claim
After speaking with your attorney, you should decide if your best course of action is filing a lawsuit. Bear in mind that many personal injury cases are settled before they get to trial. There are ways to be compensated without heading to court. If the person who is responsible for your injury has insurance coverage in place, you can file a ‘third party claim’ against the insurance carrier. First, send the company a notice of claim. This should include their insured’s information, your information, details of the accident and a notification letter of your intentions to file a claim.
Step 5: Gather relevant information
If negotiations with the at-fault party or insurance company break down, you may want to take the matter to court. It is strongly recommended that you keep all documentation related to your personal injury accident so you can present them as evidence if necessary. Documentation includes but is not limited to:
Medical reports
Police reports
Receipts from any accident-related services
Witness information
Photos of the accident scene
Communication with your employer if you have to miss work
Letters, emails or phone calls from their insurance company as well as yours
Conclusion
Filing a personal injury claim comes with strict requirements that may become overwhelming for you while you heal. Consider hiring an experienced personal injury attorney to handle all the necessary steps for you.
How to Appeal a United States Visa Denial
So you have been denied, now what?
Continue reading to find out…
Many persons apply for a United States visa with the hope of travelling to that country. However, there is no guarantee, even with all necessary documentation present, that a United States visa will be issued after the interview. It can be very frustrating for persons when they are denied a visa and many search for information on how to appeal a United States visa denial.
In order to determine if you are eligible for appeal, you must first understand why you were denied a United States visa.
Whenever someone applies for a visa, a consular officer at the United States embassy outside the United States assesses if the applicant is qualified for the particular visa.
If you meet all the conditions under the applicable United States laws, you will be granted your visa. However, if the consular officer deems you ineligible, your United States visa application will be denied.
What makes you ineligible for a United States visa?
Refusal under 214(b)
Under this section of the Immigration and National Act, consular officers are required to treat all United States visa applicants as immigrants. It is the responsibility of applicants to sufficiently prove that they plan on returning to their country. This applies to applicants for B1/B2 (visitor for business or pleasure), F1 (student) and J-1 (exchange visitor) visas. The most common cause of denial under this section is the inability of applicants to demonstrate strong ties to their home country that would compel them to return after their time in the United States has expired.
If you were denied a United States visa under section 214(b), this is not considered a permanent denial. While there is no appeal process for this refusal, you may reapply. Your application will be considered new and reviewed by a different consular officer. You must follow all the same procedures as the initial application, including paying the visa application processing fee and requesting an interview date. You should note that applications resubmitted six months or less from the time of the most recent refusal will not be reviewed favourably unless the applicant's circumstances have changed significantly.
Refusal under 221(g)
A United States visa can be denied under this section if a document or some other piece of evidence is needed for the consular officer to render a final decision. Usually, applicants are told what types of documents are needed to complete the process. You are not expected to reapply or pay another processing fee if less than one year has passed since the refusal. Once the missing documents are presented, the consular officer will review and either issue your visa or deny it based on ineligibility.
If you are denied a United States visa based on ineligibility under Section 221(g), you may be able to apply for a waiver. According to the U.S. Department of State - Bureau of Consular Affairs, you may be able to appeal depending on the visa category you are applying for. The consular officer interviewing you will tell you if you may apply for a waiver and will provide detailed instructions for how to apply.
The process to apply for a waiver can be confusing for many persons. If you find yourself becoming frustrated with the process, consider getting the assistance of an attorney experienced in consular processing.
Refusal under 212(a)
Under this section of the Immigration and Nationality Act, there are certain classes of persons whom the consular officer will determine fall within the 'grounds of inadmissibility'. Persons who are inadmissible are not permitted to enter or remain in the United States. The general categories of inadmissibility include health, criminal activity, national security, public charge, lack of labour certification (if required), fraud and misrepresentation, prior removals, unlawful presence in the United States, and several miscellaneous categories. There are certain sections that allow for persons to apply for waivers of inadmissibility and others wherein exceptions are made and one does not need the waiver. Speak with your attorney to see if you apply for a waiver or exception.
Conclusion
A visa denial can be quite frustrating given you have spent time and resources to apply for it. However, a denial is not the end of the journey. You can always reapply or have your attorney follow through on matters that may be foreign to you in the case of waivers. As long as the steps for appeal are followed correctly, you will be closer to obtaining your United States visa.
Business Interruption Insurance
Filing Successful Claims due to COVID-19
ColinBlackwood.com
Business Interruption Insurance is a type of insurance that covers a business’s loss of income due to a disaster. These disasters can be natural or man-made such as the case of an accidental fire or actions by the government that cause a cease in operations. Business Interruption Insurance policies are not sold as separate policies but are, instead, add-ons to other insurance policies held by the company.
Most policies have a defined period which they covered and this usually spans the duration of the disaster, that is, from the date the interruption began until the date that business as usual commences. There are numerous areas covered by the policies such as:
Profits: Taking into consideration the profit made in the preceding month, the company would be reimbursed this amount as it would stand to reason that this amount would have been made had the event/disaster not occured.
Temporary Location: In cases where the business has to operate temporarily from a new location the policy will cover the costs associated with moving and operation from this location.
Ingress/Egress: As with the current pandemic, when the government mandates that business be closed due to shelter in place orders or curfews, the business can receive compensation through their policy for income lost.
How to File a Claim Due to COVID-19
While Business Interruption Insurance claims are not uncommon, they can be challenging to prove. With all the changes to the economy and businesses as a result of the COVID pandemic, insurers are now faced with numerous claims. In order to successfully file your claim you will have to prove that your business was halted as a result of the pandemic or policies put in place by the government such as restriction in moment, curfews, shelter in place orders and the closure of non-essential businesses.
Policyholders will have to pay close attention to the language of the policy. While the policies cover pandemics, it might not specifically cover COVID-19. Be prepared to provide evidence that property was damaged or contaminated by the virus or that access to your business was blocked due to government orders. Entrepreneurs and businesses in the hospitality industry such as restaurants that have been the hardest hit due to social distancing orders should be insistent on filing and following up on their claims. Insurers are now being flooded with claims and these are being heavily scrutinized.
Do not be deterred if you are initially denied or told you need to prove some amount of physical damage in order for your claim to be successful. Build your case by properly documenting any and all forms of loss or additional expenses incurred since the outbreak. If you have had to hire additional staff, paid for extra sanitation, close your physical business and operate virtually - make a note of that. As legislation changes to mandate that insurance companies consider COVID-19 a disaster covered under the business Interruption Insurance policy, you will have a better chance of appealing a previously denied claim or successfully filing one.
If you need any further guidance, feel free to reach out to us. We’re here to help!
Advantages of E1/E2 Visa
There are a few subtle differences between the E1 and E2 visas. In the case of the E1 visa, treaty trader applicants must be a citizen of the country from which they are applying. On the other hand, the E2 visa offers a broader scope ….
Continue reading -
Businesses are always trying to find new ways to expand their reach and one way to do so is to branch out into different countries. This, of course, requires you to go through the process of obtaining a visa that allows you to conduct business in that country. In the United States, you’ll need to have one of the two E Visas, which are among the most common visas in America. These visas allow for trade and investment between countries and are especially important for businesses that wish to expand beyond their borders. There are two classifications of the E visas- E1 visa, Nonimmigrant Treaty Traders, which is reserved for treaty traders and E2 visa, Nonimmigrant Treaty Investors, which is for treaty investors. In order to qualify for either an E1 or E2 visa, the applicant must be from a U.S. Department of State treaty country. While some countries qualify for both types of E visas, others only qualify for one type.
What Are the Differences?
There are a few subtle differences between the E1 and E2 visas. In the case of the E1 visa, treaty trader applicants must be a citizen of the country from which they are applying. On the other hand, the E2 visa offers a broader scope as the investor, which can be an individual, partnership or a corporate entity must be a citizen of a treaty country. At least 50% of the international trade involved must be between the United States and the treaty country in order to qualify for an E1 visa while with the E2 visa, it must be proven that the investment has significant income or have a significant impact on the US economy.
What are the Advantages of Each?
The E1 visa allows you to stay for extended periods of time within the US as well as travel freely in and out of the US. You are granted unlimited two year extensions as long as you maintain your E1 qualifications. The E1 visa also allows you to bring your dependents and your spouse, who can work as well, to the United States. Similarly, the E2 visa allows for free travel in and out of the US, prolonged stay with two year extensions once the E2 criteria are maintained. Your spouse can also accompany you and work while living in the states. In addition to dependents, you can also bring other family members to the States with you.
One of the greatest limitations of both of the E visas is that you can only work for the employer or business that acted as your sponsor when you originally applied for the visa. Additionally, while the visas allow for unlimited extensions, because they are only approved for a two-year period, the extension process can be onerous.
If you’re going through the process of applying for either an E1 or E2 visa and need further assistance, reach out to us as we’re happy to help. We can also assist you in applying for an extension, or deciding which E visa best suits your needs. Send us a message or give us a call so we can start your process today!