DIY Corporation, LLC Formation Online through Tennessee Secretary of State

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The Tennessee Secretary of State has made it easier to form a corporation or limited liability company (LLC) online. While companies like LegalZoom have promoted online incorporation services in the past, you now have the option to truly “do it yourself.”

TN online corporation and llc formation

Online Corporation, LLC formation is now available through the Tn Sec of State’s website

The decision as to what type of business entity to create is an important one (and we certainly encourage you to consult with an attorney and/or CPA), but for many small business owners the convenience of registering their entity online directly with the state is appealing. The Tennessee Department of Economic and Community Development has also prepared an excellent Tennessee Smart Start Guide that provides helpful information, especially for first-time business owners. The online formation and registration service and Tennessee Smart Start Guide can be accessed at http://tnbear.tn.gov/NewBiz/. (more…)

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Identifying Identity Theft—and How to Prevent it

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With the rise of the Internet and many automated services, “identity theft” has become a common concern. Generally defined as the stealing of someone’s identity for financial or other gain, there are a number of different ways and many different channels through which identity theft can happen. Most often this accomplished by obtaining another person’s personal identification information and impersonating that person’s identity on the Internet.

avoiding identity theft

© Gary / PhotoXpress

Legal or statutory definitions of identity theft attempt to cover all of the broader implications of identity fraud. Tennessee, for instance, has adopted the Tennessee Identity Theft Deterrence Act of 1999 and the Identity Theft Victims’ Rights Act of 2004 in attempt to prevent identity theft and to provide some relief to those whose identification information has been stolen. Congress has also passed multiple bills dealing with identity theft, including the Identity Theft Enforcement and Restitution Act of 2008.

Under the Tennessee Theft Deterrence Act, “identity theft” means obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, for unlawful economic benefit, one or more identification documents, personal identification numbers or financial documents of another person. (more…)

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All About Alimony

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Spousal support or “alimony” has been part of divorce law for centuries (yes, centuries). Separate and apart from child support—which is calculated based on certain fixed factors such as number of children, incomes, and parenting responsibilities—alimony may take into account an even wider range of issues, and trial judges are given wide discretion in determining these awards.

alimony in Tennessee

© Angelika Bentin / PhotoXpress

Tennessee law specifically authorizes a divorce court to award four types of alimony:

  • Rehabilitative alimony is intended to help the spouse obtain education or training to achieve the standard of living that existed during the marriage)
  • Alimony in futuro, also known as periodic alimony, is meant to provide long-term financial support until the spouse’s death or remarriage
  • Transitional alimony may apply when rehabilitation is not required but the court finds the spouse needs temporary financial assistance.
  • Alimony in solido is lump-sum alimony, typically given to adjust the distribution of marital property.

(more…)

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Don’t Get Burned by a Boilerplate; “That’s Just Standard Language” is NOT an Explanation

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Most contracts have what appear to be standard provisions or clauses that are often referred to as a “boilerplate.” Often, these “boilerplates” can be problematic for several reasons:

boilerplate language of a contract

© David Hartman / PhotoXpress

  1. Parties to the contact (and sometimes even attorneys) may gloss over these sections as being almost irrelevant to the agreement.
  2. One party or another might incorrectly assume that standard provisions are non-negotiable.
  3. Pre-prepared or “form contracts,” by their very nature, have boilerplate provisions which may have serious implications for you as a contracting party.

A common example of boilerplate: most commercial or residential lease agreements have a provision similar to the following: “The Tenant agrees to and shall hold harmless and indemnify the Landlord from and for any and all expenses, costs, attorney fees and from and for any and all claims and liability for losses or damage to property or injuries to persons arising out of or by reason of the occupancy of the Tenant.” (more…)

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Plea Bargaining: The Most Common Way to Resolve a Criminal Case

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If you spend a lot of time watching television, you’re probably under the impression that most criminal cases go to trial, allowing the accused to be tried by a jury of his or her peers. Surprisingly, this is a much more rare occurrence in the “real-life” legal system. The reality is that almost all criminal cases are plea bargained, meaning that the parties agree to what charges the defendant will plead guilty and what the sentence will be.

plea bargainTo defendants, there’s often an incentive for plea bargaining – typically a reduced sentence or lesser charge. For example, the parties might reach an agreement wherein the defendant will plead guilty to simple assault (a lesser charge) and not aggravated assault. This is called “pleading the case down” and most often happens when there is a weakness is the state’s case. It is important to have an attorney investigate the facts and research the law to determine how strong the state’s case is, remembering that the state has the burden of proving each element of the offense beyond a reasonable doubt. The weaker the state’s case, the better the deal. (more…)

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Throwing Punches on the Playground can Mean More than a Visit to the Principal’s Office

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Most would agree that schoolyard fights are never the best way for students to solve their issues with one another; but what many people may not know is that the consequences of these fights can be much larger and more damaging than a black eye. School fights and other incidents involving physical contact with other students (i.e. punching or slapping) may very well result in charges filed in juvenile court. Typically, a school fight will result in Saturday school, school suspension, or in more extreme cases, time in an ALC (alternative learning center). These scenarios are based on the school’s discretion and understanding of the altercation. In the event that the above three levels of punishment don’t “fit the crime,” stronger measures may be taken. (more…)

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Write This Down: Contract Provision Put on Paper Pays Off—Even 3 Years Later

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In order to convince their buyers to purchase a water front home site on Lake Nickajack, the listing agents told them would buy the lot back if the buyers ever wanted to sell it. The buyers said they would agree if the agents “would put it in writing” and negotiated a written contract provision that the agents “at any time” would buy back the property at the same price it was sold.

The buyers paid $441,000 for the property, but a little over three years later demanded the listing agents buy back the property. The agents refused, and when sued, primarily argued that the contract was not enforceable because it was not supported by consideration and/or the buyers had not exercised the option within a reasonable time.

The Court of Appeals sided with the buyers (more…)

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Historic Election for Marriage, Marijuana laws

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While most of the attention of this week’s election focused on the Presidential race, the legalization of marijuana in Colorado and Washington state and the approval of same-sex marriage in Maine and Maryland will have a more profound and longer term effect on state and Federal laws—and probably on everyday life, as well.

Same-sex marriage vote Nov 6, 2012

same-sex marriage vote Nov 6, 2012 in Washington, Minnesota, Maryland and Maine (By CentrumZero (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

 Marijuana is classified as an illegal drug under Federal law, so it will be interesting to observe how the states and the Department of Justice decide to play this issue.

As Colorado Gov. John Hickenlooper said: “This will be a complicated process, but we intend to follow through.”

It is also clear that despite the recent passage of state constitutional amendments prohibiting gay marriage, its approval by popular vote yesterday (and by court order and legislation in other states previously), will force the legislatures of all states to address same-sex marriage issues—or the courts will address it for them.

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“Name That Beneficiary”—The Wills and Won’ts of Wills

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Do you really need a will? It depends. But if you have a bank account, life insurance, retirement plan or any type of an investment account you do need to make sure that any beneficiary designations clearly define the person or entity where you want those assets to go upon your death.

It’s a common misunderstanding that your will determines exactly to whom your estate will go when you die. The reality is, for many people, the majority of their estate consists of insurance and retirement/investment accounts. As general rule, if you have designated a beneficiary (ex. parent, wife, child, etc.) on an account or policy, that person will receive what is left in the account regardless of what your will specifies. (more…)

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Alcohol Isn’t the Only Way to Land a DUI

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Anyone who’s passed a driver’s test or watched the news knows that it’s illegal to operate a vehicle under the influence of alcohol. A lesser-known fact, however, is that having too many drinks isn’t the only way to receive a DUI.

prescription drugs can be cause for DUI

© Lee O’Dell / PhotoXpress

The reality is that certain prescription (and over-the-counter) drugs – such as diazepam (Valium), Ambien, and Benedryl – can affect your ability to safely operate a vehicle and, in these instances, you’re also at risk of being charged with a DUI for impairment. This is true even when the drug in question has been prescribed by a physician.

Needless to say, the risk is compounded when these drugs are combined with alcoholic beverages and you take the wheel. Even in moderation, alcohol consumption can amplify the effects of prescription and over-the-counter drugs, so even if a blood and/or breath test reveals a BAC of under 0.08%, the state can still prove that you were driving under the influence if there is evidence of prescription drug use that affects your ability to drive. (more…)

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