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Tuesday, October 15, 2013

TRO (Temporary Restraining Order) and Injunctions in Civil Cases

I had an interested day in Court today. We won our case -- the surprise was the amount of evidence and the depth of the hearing. Usually a TRO -- slang for a temporary restraining order -- is almost universally granted pending a full hearing on the matter.

In this case, we represented the respondent -- the individual being accused of taking actions that should be "stopped." How did we beat this case? The key is understanding what is requried for a TRO.

First, a discussion of the process. When a petitoner brings a complaint of harassment, threats, or assault, that is not family related, the Court will schedule an initial TRO hearing. Additionally, the court will schedule a full injunction hearing for about 90 days following the TRO hearing date. The full hearing is conducted in front of a judge, using strict rules of evidence.

A TRO requires that the petitioner (the person bringing the case) show:
(1) that there is a substantial likelihood he [or she] will prevail on the merits; (2) that he [or she] is in danger of suffering irreparable harm during the pendency of the action; (3) that more harm will result to him [or her] from the denial of the injunction than will result to the defendant from its grant; and, in appropriate cases, (4) that the public interest will not be disserved by the issuance of the requested order.

(In re Estate of Reilly, 933 A.2d 830, 834 (D.C. 2007))

When defending these cases, first, focus you need to prepare your respondent. This requires carefully preparation to demonstrate that he/she is reasonable, even tempered, and presents well at court. Practice! Your client MUST be smooth and clear in his/her presentation.

While the level of proof required for an initial TRO is minimal, it is STILL present. Mere allegations are not enough for the petitioner to succeed. Therefore, you should be prepared to rebut any witness that might be brought by the petitioner -- strike the credibility or the knowledge of the witness. Isolate the petitioner -- her word against his word is not enough to convict. It is frequent that the petitioner (especially wilely plaintiff's attorneys) will try to get petitioners to claim "fear of harm" and that "he/she is facing immediate, irreversible harm". CHALLENGE THIS. There must be some corrobration to support the position. It must be credible.

You should, generally, expect to lose the initial TRO hearing. This is common -- the Court is inclined to grant this just to be safe. However...and this is VERY important - you want to setup for the scheduling conference for the full injunction hearing. The scheduling hearing will be set at the TRO hearing, and is usually one to two weeks after the TRO hearing. Regardless of the outcome, either party may continue with the full hearing.

By asking the proper questions at the TRO hearing you setup the record to challenge (or refute) the petitioner's position. At the full hearing, the petitioner will have a much more strenuous time getting a permanent order.

Note -- for the TRO, come prepared to ask questions of the opposing witness. You will have a chance to put on a case, no matter how low the bar for an initial finding may be. THIS WILL BE ABOUT CREDIBILITY.

Need help with a restraining order? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex TRO/injunction issues.

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.

Saturday, October 5, 2013

Tax Liability and Divorce

So what happens when your love is shattered on the shoals of acrimonious divorce? Well, according to the tax man (aka Federal Government) -- not much. A joint tax liability waits for no man (or woman!), regardless of the current status of the divorce. Let me explain what this means, and then a few tricks to address the problem.

Okay -- here's the scenario. Wife and Husband have been married for five years. They created a joint basket business supplying eager underwater artists. The business was a success but the marriage was not. On the eve of the fifth anniversary, wife informs husband that the honeymoon is over, and serves him with a causes bellos for mensa et thoro in Virginia. All is progressing as these actions are want to do, with a large joint asset pool, including vehicles, an expensive home, and two kids. Then -- the unexpected happens.

In August of 2012, the IRS contacts the husband (nominal CEO of the basket business). They are being audited. The tax returns from 2007 - 2012 were filed jointly (1040) and include, primarily, the income from the business as the income for the couple. Additionally, although wife is listed as the only member of the basket weaving business, in fact the 1120S forms show husband as owning 49% (via K1's). The audit progresses, and it is determined there is a liability of $60,000.

Now, you would expect this debt (joint) to be considered a marital debt to be determined by the state court handling the divorce. However, the IRS is demanding payment NOW or levies will be had (now = August 2013), and the payment demanded is $60,000. Husband is no longer communicating with wife, and she has no way to get him to pay his part of this prior to the final merits hearing on the divorce, which is not scheduled for April 2014.

So, what options are out there to handle the impending debt? First, they need to be three months behind before the IRS starts rattling the lien-sabre. Interest will accrue, but nasty messages will be minimal.

The solution to this is to have the wife pay the IRS debt and then sue in state court to be re-paid...but what is husband is likely to be a no-show at the hearing, or has no money to pay?

Then the couple should file for a payment plan or reduction in the punishment amount from the IRS via a form 433A. This is a request for payment plan and abatement of collection operations. This will allow a payment plan to be implemented until a final judgment from the state judge may be had. Of course, both parties must sign. However, you can ask the court to enforce payment pendente lite or conversely require that the state court require the reticent party to agree to complete the 433A.

Interestingly, on a joint case were share with another law firm, one of their associates came up with a clever idea to get a home equity loan on the house to pay the tax debt, then sort out the home equity loan in the state court. That would work, too.

Finally, you can petition the IRS to split the tax liability by filing amended returns. This is the least palatable option as it causes significant disruption to the agreed on tax resolution.

What you must advice your client, however, is that the IRS does not care about his/her state divorce operations. A joint debt is joint and severable. Someone will pay, or both will get liens. Do not let on of the parties use a suicide-technique of just "sacrificing" themselves via tax lien to hurt the opposing party (i.e. do nothing just so that the parties will be hit with the liens). That is gross bad act, and warrants state court action to injoin. Need help with a tax or family matter? Give us a ring! We'll discuss your case for free on the phone. We have several VA, DC, and MD lawyers who have considerable experience in sorting out messy and complex litigation matters.

Sean R. Hanover, Esq.
Principal Attorney
The Hanover Law Firm is located in Washington, DC and Fairfax, VA. We practice
in both state and federal courts in VA, MD, and DC.