Total Pageviews

Sunday, March 30, 2014

Padilla and Post Conviction Immigration Relief in VA -- WE WANT YOUR CASE!

Padilla and Virginia -- we're looking for a good case! Do you have one?


In immigration related matters, the controlling case is Padilla v. Kentucky. This case indicated that if the judge did not review the immigration consequences of a plea, and further that the defense attorney did not advise the defendant of the impact a plea may have on him immigration status, that the case should be re-opened. This process is collectively known as "post-conviction relief."

Friday, March 28, 2014

Sex Crimes -- mixing minors and mayhem

Hanover Law answers questions on a variety of topics, and one recent inquiry stood out in our criminal discussions. In VA, what is statutory rape and what are other possible charges for sex with minors? Seems like a bizarre and slightly embarrassing question. However, if you have a teenager or young adult who is experimenting with sex, it is good to know what the risks might be.

Question:
I am 20 years old and have a child with an 18 year old. When we had sex, I was 19 and he was 17.

Criminal Indictment -- what is it?

So What's an Indictment anyway?



The term "indictment" (pronounced in-dite-ment) is used to indicate the process where a grand jury finds sufficient evidence to charge a person for a specified felony offense. The prosecutor must bring evidence and witnesses to the grand jury in order to convince the jurors that the charges are "real" and substantiated. The term for this is "taking the case to the grand jury", and under the constitution, this must be done in a speedy manor (Sixth Amendment to the Constitution). States have considerable leeway to decide what constitutes "speedy", and if the accused is not detained, the definition becomes even more broad. But generally, detained = ~100 days; non-detained = ~9 months. If this period elapses with no action on the case, a motion can be made to acquit the accused for want of prosecution.

For example, possession of 5 grams of marijuana is a misdemeanor offense, not a felony. Therefore, there would be no grand jury. However, possession of 1lbs of marijuana, with distribution charges and felony crossing state lines, would absolutely be taken to a grand jury.

Remember this -- a criminal conviction for drug abuse, no matter how minor, will have devastating consequences for your life and future job prospects (remember that little box you have to check indicating a conviction?). Do you have a drug charge? Let us help you immediately. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Tuesday, March 25, 2014

IRS Tax Deficiency

So You Have A Tax Bill....



Generally, you are not going to jail for not paying a minor tax bill. Less than $50,000 is considered quite minor on the books of the IRS. This, however, should not confused with the IRS not making your life a living hell. Oh, no!

They will. There are three stages to IRS wrangling.
  • The first stage is a notice that is mailed to you. This notice, commonly called a deficiency notice, will indicate you have an outstanding liability, why you have the liability, and what steps you can take to immediately fix the liability and avoid further IRS intervention. Often, the IRS is incorrect in its calculations, or you have misfiled something. When that happens, you can submit a modification to earlier filings or challenge their finding.
  • If you do nothing, the second stage occurs. You are notified of the IRS's intent to levy your wages, and bank account. You may also receive notice of liens placed against your property. You definitely need to defend against this, as the interest and penalties can be stunning.
  • The final stage is seizure and foreclosure of assets and property. In this event, the IRS actual sells off your property to pay for the tax debt.

There are several methods for stopping or challenging each step. If you have a moment, read our blog (at www.hanoverlawpc.com) and look-up the article we wrote on IRS form 443. Do you have a tax question? Call us! We'd be glad to help. 703-402-2723


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Tuesday, March 18, 2014

So you want a divorce...now what?

So my friend Amy came to to talk to me about family law problems. Her husband had walked out rather unexpectedly. They owned a home in Virginia, and her children were mostly grown and gone. She was really annoyed that Mike was gone for the last few weeks, and asked our Firm what she should do. I answered her question thus:

Sounds like it might be time to file for divorce. If he has been absent for more than 30 days, you have a strong case for desertion. That gives rise for an at-fault divorce. As you have no young children at home (all 18 or older), you should be able to get a standard, no-fault divorce in 6 months (must be separate and apart). However, if you prove cause, you may be able to get it sooner. The law dealing with these matters, and others discussed in this post, can be found at VA Code §20-79.

Speed, however, is not the salient reason for filing a for-cause divorce. In fact, the advantage is one of positioning. During the opening volleys of the divorce engagement, you will file what is known as a "pendente lite" hearing request. Often, this is filed at the same time as the initial complaint for divorce.

The more "bad" acts you can prove (such as desertion giving rise to the for-cause divorce) the more cogent your pendente hearing arguments will be. Arguments often brought up at the hearing include: sole use and position of the marital home, spousal maintenance and support during the pendency of the divorce (the final amount, if any, will be determined at the conclusion of the divorce trial), child custody and support (not entirely relevant to your question), and use of shared resources (such as vehicles, savings accounts, medical plans, etc.).

There are several intervening steps that can be used to effect a legal separation without filing a divorce. Without knowing your situation more thoroughly, it is unclear if a divorce as mensa et thoro (legal separation as opposed to divorce) would be useful in your instance.

If you would like to talk about how to go about getting the best outcome for your situation -- namely, should you file now or wait the 30 days for your best desertion filing -- give us a ring at 703-402-2723 or email us at admin@hanoverlawpc.com.


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, March 15, 2014

Access to Employee Records

While answering questions on a review board, I came across a request for information on employee records. I responded by citing to a Virginia CLE document covering the same topic -- see below!

Blocking Access to Employee Records

A recent Virginia CLE had a great write-up on this topic. I'll share excerpts from it here:


Are Virginia employees entitled to a copy of their personnel files?

No, with respect to employees of private sector employers. Most employees mistakenly believe that because a file has their name on it, it is their file. In fact, a personnel file is like any other company record and, unlike many other states, including Massachusetts (Mass. Gen. Laws Ann. ch. 149, § 52C) and California (Cal. Lab. Code § 1198.5), Virginia does not have a statute requiring that private sector employers permit employees access to their personnel file information. Thus, a private sector employer may refuse to give an employee a copy of or even access to the employee’s personnel file.

...

Public sector employees do have a right in Virginia to review their files. See Va. Code § 2.2-3705.1 (pertaining to exclusion from FOIA rules. “The following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law: .... 1. Personnel records containing information concerning identifiable individuals, except that access shall not be denied to the person who is the subject thereof.” ...

May an employer put negative documentation in an employee’s personnel file without telling the employee or giving the employee a copy?

Yes. Many human resources professionals have been taught erroneously that negative personnel documentation cannot be placed in a personnel file unless a copy is furnished to the employee first. There is no prohibition against a private sector employer in Virginia placing negative personnel documents in an employee’s personnel file without having first given a copy to the employee or having told the employee. This misconception probably arises from fundamental notions of fairness, with some employers believing it would not be “fair” to place such documentation in the employee’s file without having first given the employee a copy. ...


This was taken from the Virginia CLE bulk-email entitled: "Did You Know? Is an employee entitled to a copy of his or her personnel file?" sent on 14 March 2014. For a complete copy of the email and relevant information, visit Virginia CLE, at: www.vacle.com

Do you have a question about employment law? Give us a ring! We can help -- 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Thursday, March 13, 2014

Harassment and Extortion

They Took a Video of WHAT!?

What do you do if someone is threatening to do something (say, post a video) against you unless you pay them money, or give them something?

There are really three avenues here. The first is criminal law. You can swear a warrant out against the offending individual. The code section is VA Code 18.2-59 and reads in pertinent part:

"Any person who (i) threatens injury to the character, person, or property of another person, (ii) accuses him of any offense...and thereby extorts money, property, or pecuniary benefit or any note, bond, or other evidence of debt from him or any other person, is guilty of a Class 5 felony."

Saunter down to the local magistrate office (usually at the adult detention center, but contact the non-emergency police number, and they can provide the proper address for your locale) and bring proof of the threat.

A moment to digress here -- as this applies to both criminal and civil (below). In order to move forward, you must have some proof that the person is threatening you. Your case will fall flat if there is not some extrinsic (that means other than you) evidence to support your allegation. Did he call you? Did she text you? Is it on facebook or email? Think this through -- you will need to provide evidence of the purported wrongdoing ere the police or the Court can help you.

In this situation, the second approach is to obtain a civil injunction against the person. This essentially states that the individual is injoined (stopped) from doing some act by Court order. If they do it anyway, they will be heavily fined or even put in jail. The Virginia Code has many different section dealing with protective orders and civil injunctions. See for example, 19.2-152.9 and 10 which state in part:

The court may issue a protective order pursuant to this chapter to protect the health and safety of the petitioner and family or household members of a petitioner upon (i) the issuance of a petition or warrant for, or a conviction of, any criminal offense resulting from the commission of an act of violence, force, or threat or (ii) a hearing held pursuant to subsection D of § 19.2-152.9.

You would injoin the wrong-doer from threatening you and from posting any video or other private material.

Remember, you cannot stop someone from posting an already public video, although you can argue that that public material, purposely misused or misconstrued against you, is grounds for harassment (leading you to file a protective order).

Thirdly, if the individual actually published the offending material, and you were harmed by it, then you could also sue for slander and/or libel (essentially the same effect, just differs on how the material was published). This is a civil action (called a "tort"), and you can obtain a significant judgment if found credible by a jury.

Are you suffering from harassment, or extortion? Don't put up with it! If you are in the DC, Virginia, or Maryland areas, contact us -- we can help. 703-402-2723

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Wednesday, March 12, 2014

So I messed Up -- What do you do when you are the bad actor in a divorce?

From a recent discussion on the family law forum:
Question to Hanover Law:

My husband was cheating on me for fifteen years before I found out. Then I left the home after he became abusive to me in front of our children. I was gone for a while, so when I returned he had divorce papers served on me. Only for the divorce and no money was involved; the papers said that they were for divorce only and no settlement was involved.

So I Left....

Answer:

Generally, leaving the home without securing a separation agreement, protective order, court order, or some form of agreement opens you up to a claim of desertion. This is made worse by leaving the kids with the alleged "abusive" spouse. Would you leave your kids with someone that hurt you? That does not make a lot of sense.

Usually, the Court will find that when one parent left, absent extenuating circumstances, the person abandoned the family.

This results in grounds (at least in VA and DC) for a "for cause" divorce. This type of divorce grants a more favorable status to the complaining spouse in terms of property settlement, pendente lite support (that's support and benefits given to one spouse during the course of the legal proceedings).

What happens if you did this?
  • First, you need to get all your information together. In this case example above, the person left because of infidelity and mental abuse...so document it. If you can show that the other actor was also bad, it will go a long way in mitigating the impact of walking out on the family.
  • Secondly, you need to get a divorce attorney that is experienced in tough, possibly negative situation divorce. You can overcome an accusation of desertion, but it takes careful planning and work.
  • Thirdly, track the money -- who was using the credit cards and the bank accounts. This is important is any allegation of wrong doing.
  • Finally, be very clear on why you came back and that the absence was of a short, fixed duration.

Do you need help dealing with a difficult divorce? Are you the bad actor? You need to get good, honest, candid legal advice. When you're ready to talk about fighting for your rights, and overcoming challenging circumstances -- call us. 703-402-2723.


Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Who will hear my child support/custody case?

A question of jurisdiction and venue:

I was recenlty asked the following question in an online forum:

I live in Virginia and my husband and I separated 7 years ago. We have a child custody agreement but no child support agreement; I want to file for child support and to change the custody agreement but I don't live in the county where it was filed. Should I file for the custody case to be transfered to the county I will be filing for child support? Should I transfer it first and then file for support?


Venue vs. Jursidiction...just how does this work?


Answer:
Great question! We lawyers talk about jursidiction and venue all the time...well, more appropriately, jurisdiction. Rarely is venue an issue in a divorce/child support case. The proper location for divorce is circuit court. The proper venue for custody and support issue is Juvenile and Domstict Relations Court (J&DR), a subset of circuit. There you go -- venue solved.

The question is -- did you appeal you original J&DR determination? An appeal from J&DR goes to Circuit -- so you need to make sure the case is really still in J&DR.

That notwithstanding, any J&DR court in VA has jurisdiction to hear the case. If your ex does not want you to bring the case where you are now, he can file a "forum non-conveniens". Usually, that is reserved for jurisdiction arguments, but it can be argued for venue, too -- but only if filed timely after you bring the suit.

Your case for hearing it local to you is further bolstered if the child (children?) live with you now. But this is just icing on the cake (or a handy way of smushing a forum-non-conveniens filing).

The code section for Virginia dealing with venu is: VA CODE §8.01-257 (venue, generally). Dealing with children and J&DR matters: VA CODE §16.1-243(b).


Need help with figuring all this out? Give us a ring! We'll be glad to chat with you further. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Sunday, March 9, 2014

Waivers and Adjustment of Status for Refugee/Asylee Cases

A Clever Waiver for Humanitarian Refugees and those holding Asylum

Adjustment of status for individuals granted asylum or refugee status can be tricky. Because they have no sponsor in the US, they have no easy means of converting from "legally here" to "lawful permanent resident" or LPR. In the code there exists a provision for just this case -- INA 209. Under INA 209, any refugee admitted under the 50,000 person cap as a humanitarian refugee pursuant to INA 207, and any individual granted asylum under INA 208, may apply for LPR status after 1 year (See, INA 207(a) & (c), INA 208(d)(3), and INA 209(a) & (b)).

However, what if the individual applying for adjustment has a criminal history? Typically a 212 or 601 waiver would address these problems in an I-130/I-485 context (including removal proceedings) -- however, that cannot be done when the refugee or asylum holder cannot return to his/her home country to await adjudication of the waiver. Grid lock.

The resolution is found in INA 209(c). The code specifically permits the waiver of criminal conduct for asylee/refugee applicants -- with a few provisions. In 2005, USCIS issues guidance on the application of 209(c). An excerpt dealing with what may, and may not be waived is included here:
Section 209(c) of the Act prohibits the Secretary from waiving the following grounds of inadmissibility:

  • Section 212(a)(2)(C) of the Act relating to drug trafficking;
  • Section 212(a)(3)(A) of the Act relating to security grounds;
  • Section 212(a)(3)(B) of the Act relating to terrorist activities;
  • Section 212(a)(3)(C) of the Act relating to foreign policy considerations; and
  • Section 212(a)(3)(E) of the Act relating to Nazi persecution and genocide.

The Secretary may waive any other ground of inadmissibility under section 212(a) of the Act for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest. (Interoffice Memo, Aytes, HQPRD 70/23.10, 31 Oct 2005)

While there are provisions that allow USCIS to enter a waiver sue sponte when reviewing an I-485 for refugees/asylees, this counselor strongly recommends that an I-602 always be included with any filing where a waiver is required. The 602 form requests USCIS waive any precluding events or history. The more serious the crime, the more information must be provided to prove the "equities" of the case -- the balance in favor of granting the waiver vs. the seriousness of the crime warranting denial. Writing the waiver brief to accompany the 602, and providing all relevant information and supporting document, is critical. Be sure to speak with a competent attorney who has experience writing 601 or 212 waivers -- much of the content will be similar. The advantage to a 602 waiver, however, is that the presumption is in favor of the immigrant for all but the most serious offenses.

More information on the application of 209(c) can be found in the case Matter of Jean, 23 I&N Dec 373 (AG 2002). This case is interesting in its own right -- the Attorney General took a direct interest in the 209(c) case after BIA applied too liberal a standard in granting 209(c) waivers. Any immigrant convicted of particularly serious crimes, or those involving violence or weapons, should read this case very carefully. Would you like help adjusting your status from asylee/refugee to lawful, permanent resident? Do you have a criminal history that might prevent you from adjusting? Talk to us! We have years of experience working with folks just like you. We can help! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Saturday, March 8, 2014

Legal Custody - a quick example

From a recent question/answer session on family law:

Question:

How does Legal Custody work?
My sister is divorced, and she and her ex-husband have joint legal custody of their 7 year-old son. He has attended a blue-ribbon private school for the past two years, and he is thriving. He absolutely loves his school, which he attends with his cousin, who is his very best friend.

His father wants to switch him over to public school, and has provided only a few (and in the mother's and my opinion, ridiculous) reasons to do so. The mother is the one who takes their son to school, picks him up, does all the volunteer hours, attends school functions, aids with homework, etc. The father has done NOTHING concerning the child's education so far, other than paying all the tuition the past 2 years (in lieu of the $300/month child support that is in the separation agreement, I might add!). The mother is willing to pay the ENTIRE tuition herself.

Can he force her to send her child to an inferior public school under these conditions?

Answer:

Legal Custody Explained
Force the matter? Perhaps. The controlling issue here is not who pays what, but rather who has legal custody. Decisions regarding education, religion, medical matters, etc. are controlled by the custody agreement -- under the title "legal custody". If mom has "sole legal custody", then she can dictate precisely where, when and how the child will engage schooling. If the matter is joint, than dad has a say, too.

In the end, mom can probably just keep the kiddo in the school. If dad is unhappy, he will have to file to enforce his view. If he has joint custody, he only needs to argue the equities of the different schools. If mom has sole legal, then he has to first prove he should have a say, and only then, if the court agrees to modify "sole" to "joint", can he argue the equities of the schools.

As to the equities of the school -- the child's two year history with the school, relationships with peers, and academic success are all key. These are strong arguments.


If you have any questions regarding legal custody -- give us a ring! 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006

Sunday, March 2, 2014

IRS Section 1244 - Claiming Worthless Shares

What happens when you invest in a company -- large or small investment -- and the company goes belly up? Usually, you are limited to claiming a max of $3,000 against regular income (unlimited against capital gains). But what if you invested much more?

Enter 1244!


Tax code 26 USC §1244 deals with the deduction for worthless stock -- either because of mismanagement or simple bad luck. Known as "1244 stock", qualified deductions under this regulation are not limited to the capital gains deduction cap ($3K outlined above), but rather have a much higher deduction of $50,000 for individuals, and $100,000 for married couples.

To qualify for "1244" status, a company, whose stock is now worthless, must meet the following requirements:

1) The taxpayer has to be the original holder of the stock (can't inherit it, or buy it from someone else).

2) Taxpayer must be a real person (i.e., not a trust, estate, company, etc.)

3) The stock must originate from a company whose gross value (based on the value of the shares themselves) does not exceed $1 million ("small business" test). There are some qualifiers here -- stock issued for amounts invested over the $1 million threshold do not qualify for 1244 stock status (In the easiest example, if each share is worth $1, the first million shares would qualify for 1244 status; each share purchased thereafter would NOT qualify for 1244 status. If investor X held 600,000 shares (at $1), and investor Y held 500,000 shares (at $1), some portion of each set of shares would not qualify for 1244 treatment. The code states that which shares are 1244 shares should be declared if the gross investment is above $1 million; there is a formula if that fails, but it is beyond the scope of this article); also, there are computation differences when more money is put into the company, but no new shares are issued.

4) The company issuing the stock must be "largely an operating company." This is defined variously in the code, but the controlling cases are Bates v. United States, 581 F.2d 575 (6th Cir. Ohio 1978) and Crigler v. Comm'r, T.C. Memo 2003-93 (Tax Court 2003).

Most companies/taxpayors will pass the first three tests, and the last one will be a complete miss.

In Bates, the Court explains the "largely an operating company" concept. There, the plaintiffs attempted to claim $100,000 in "worthless" stock losses. BIC, the company in Bates, had never sold any product, although it worked closely with another company, National Cleveland, to develop a machine tool business, and had even sent an "employee" (who was actually the son of the owner and was never paid) to work with the other company. There was considerable development work done on ideas and prototypes. However, nothing was ever finished or produced. The Court held:

Congress created a significant tax advantage in enacting § 1244, but it was intended to have narrow application. It was not intended to provide a vehicle for favorable tax treatment of losses suffered on passive investments or investments in large enterprises. Its purpose was to offer an incentive for investment of new funds in small businesses. Other provisions limit the size of corporations which may issue section 1244 stock. The purpose of § 1244(c) (1)(E) was to prevent a mere investment entity or holding company from qualifying.

and further:

The second issue presents little difficulty. BIC never engaged in any business operations. It invested most of its resources in National Cleveland. This investment resulted in the employment of Arthur Bates by National Cleveland. Nevertheless BIC was nothing more than a holding company or vehicle for investment. (Bates at 580)

There are many ways to show that the company was largely operating, even without sales. The Court did explain that:

If National Cleveland had paid BIC for the services of either Alfred or Arthur Bates or if there had been some agreement specifying that the services were performed for National Cleveland on behalf of BIC the case would be much stronger for the taxpayers. (Bates, 580)

Other examples might be a business plan, investment in marketing and actual marketing leads, prototype deliveries and actual test deployments. In a receipt tax case Hanover Law handled, none of these factors occurred. In fact, it appears that while a few sales calls were made, and some material was produced, the thrust of the sales and marketing was fabricated (a great deal of fraud and misdirection). The moving of funds overseas further obfuscated the playing field and suggested this company was nothing more than a "holding company." The IRS is very very strick on when stock may be claimed as a 1244 writeoff. Our company did not qualify.


How do you claim "1244 shares" status on your tax return?


Complete Form 4797. 1244 losses are claimed at line 10. See: Form 4797 instructions.
Complete Form 8949 if your loss exceeded $50K (individuals) or $100K (married filing jointly). See Instructions for Form 8949

Do you have a tax question? Give us a ring or send us a note! We'll be glad to review your question and see how we can help. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006