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Monday, April 27, 2015

Child custody when a child is taken out of state

Recently, I had a chance to chat with an individual who had questions about her son. In brief, she requested:
My son and his father moved from Virginia to Nebraska in June 2014. We were never married and we both lived in Virginia when my son was born. My son's dad got awarded full custody in 2008. I have visitation every other weekend. Since they moved to Nebraska, I haven't seen my son in 10 months. I'm not a pedophile but they're treating me as if I've done something wrong. What can I do?

Generally, under the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act), the court that last had jurisdiction over the case, retains jurisdiction unless challenged. In this case, it appears that the last court that had control was in VA. Ergo, you could file in VA for a "show cause" hearing as to why your ex-partner is not honoring the Court Order that requires him to provide visitation to you.

UCCJEA = Uniform Child Custody Jurisdiction and Enforcement Act
Covers a variety of topics, but three points are good ones to always remember with the UCCJEA:
  1. The court that entered the last order has jurisdiction and must release it for any other court to have control.
  2. For an eligible court to "take control", a the child and one parent must have lived in the new jurisdiction for at least six months.
  3. Child custody matters are NOT controlled by the UCCJEA.
However, be advised that under the UCCJEA, your ex-partner can now file in Nebraska. The rule holds that once a the child, and one parent, have lived in a new jurisdiction for at least six months, that new jurisdiction may take control of the case. I would expect your ex-partner to file in Nebraska if you file in VA, and seek to have the case transferred there. Likely, he would succeed.

Fighting UCCJEA cases is neither cheap, nor easy. In the end, the judges from both jurisdictions will have a chat (they must, by statute), and determine what court will retain the case. This means that you should expect to retain an attorney in each jurisdiction if your ex really does file to move the case to Nebraska.

Do you have a question concerning family law? Email us or call 1-800-579-9864. We provide free initial consultations, and a friendly shoulder to lean on!

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Sunday, April 26, 2015

How to Sell Shares as a Private Business - Rule 504 of the SEC

So you own a small business, and are contemplating obtaining investors? Good news -- It's possible! Bad news, you better know what the heck you're doing.

Care is required here. As a small company contemplating a Rule 504 filing under Regulation D of Security and Exchange Commission, you need to be sure you understand the rules. Generally, you want to be a corporation and not a limited liability company. No hard and fast rule, however, LLC's don't generally have shares, and usually the operating agreement reads more like a partnership than a corporation. Make sure you have a seasoned attorney review the LLC agreement BEFORE soliciting any investors. LLC vs. Corp. aside, let's take a moment to understand what Rule 504 is all about.

At a minimum, Rule 504 allows you to sell shares of your company to qualified investors (considered a "public offering") without having to file notices without the requirement of formal registration and regulation by the SEC. You are, however, still required to complete Form D (hence the name of the action: Rule 504 under Reg D) which provides certain minimal data to about the company. The SEC then enters that information into an online database accessible by any individual or organization that might want to reference or research the company. Although you are not required to file the Form D annually, each time you make a sale under a 504 offering, you SHOULD update the Form D to ensure the SEC information is current. If the information in the online database is off, you risk a fraud charge even under Rule 504. Be careful.

You qualify for a 504 filing if your company has has sold or plans to sell up $1 million in shares in a given 12 month period (hence the annual comment above), and your company is established (defined as having a clearly definable business plan, and some footprint in the market). Generally, shares sold under a 504 plan are restricted -- meaning, they cannot be resold on the open market without meeting further requirements. Those requirements are a bit complex, and generally relate to state regulations -- contact us if you need more information on that.

To find out more about 504 ops, visit the SEC website devoted to the same. It's a tad complex, but it gives a good background. See: SEC Rules for 504 filings.

If you need additional help with SEC matters, or business transactions, give me a ring! I'll be glad to discuss your individual situation, and see what steps make the most sense. Hanover Law: 703-402-2723 or SeanHanover@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Thursday, April 16, 2015

Motions in Limine -- an example

Although there are multiple uses for motions in limine, the most basic form is to (1) exclude testimony from certain witnesses, and (2) to exclude evidence on the grounds of (a) undue prejudice, (b) lacks authenticity, (c) lacks foundations, (d) lacks relevance, or (c) is cumulative and therefore unnecessary. Occasionally, a proponent will file a motion in limine as a backhanded form of summary judgment; asking the court to deny a party the right to present an argument or facts based on the law stipulating such argument cannot be had. However, while perfectly permissible, the Courts usually frown on waiting until just before trial to make a summary argument, and are much more inclined to find a question of fact requiring the trier to hear.

I've included a recent filing in a multi-million dollar shareholder/fiduciary claim case. In this instance, note the abridged nature of the summary, the inclusion of a chart characterizing the over 400 pages of evidence, and the argument against their witness. The rule that governs motions in limine is Federal Rules of Civil Procedure 402 and 403, which gives the Court jurisdiction to include (402) and exclude (403) any evidence. Remember -- a motion in limine is an argument based on the rules of evidence. Most of the time, your motion will be heard at the pre-trial conference, but must be filed according to the scheduling order.

One last note -- be sure to provide an alternative remedy of "caution". This lays the foundation for attacking and seeking sanctions if your opponent engages in improper evidence submission during trial, after having been cautioned not to do so via your motion in limine.



Do you have a question about Court procedure, motions in limine, or pre-trial strategy? Call us! WE CAN HELP! 703-402-2723 or 1-800-579-8864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Wednesday, April 15, 2015

Difference between JOINT filing and CONSENT filing

As a practitioner in both Federal and State jurisdictions, I am often consulted on matters that cross between both types of Courts. A recent question posted to the American Immigration Lawyers Association (AILA) is a good example. In this case, a practitioner new to immigration law (Federal) was asking the difference between a joint filing with the opposing counsel, and a consent filing with the DHS attorney. Her question, in part, read:

I used to file "consent" motions in state criminal court when I had consulted with the prosecutor and they agreed on whatever I was asking for. I didn't have them [prosecutors] actually sign the motion...

I've been looking at a sample "joint" motion to admin close an immigration case, and there's a space for the DHS attorney to sign. Is that just a best option, or is it actually necessary for me to get OCC's (Office of Chief Counsel -- immigration equivalent of the "district attorney" for a particular court) signature on a joint motion?

Does it make a difference if I title my motion "consent" vs. "joint"?

A discussion on JOINT MOTIONS vs. CONSENT MOTIONS:


A consent motion is one that the opposing parties agrees to allow you to file – consent = no opposition. The other party consents to your filing, but takes no position on the matter.

A joint motion is one where you and another party (together) are requesting the Court take some action. A joint motion is much stronger than a consent motion. In a joint motion, all parties are arguing that the Court should grant the requested relief, and the facts alleged are true. The opposition has moved from merely agreeing to allow you to file, to actually arguing for the relief to be granted. To make an argument to the Court, counsel must sign the motion. Hence for a joint filing, all parties filing in joint must sign.

When the petitioner AND the government both file in joint (a joint motion -- in the example above, OCC and the petitioner), the government is actually obligated to argue on behalf of the motion, just as you are obligated to argue on behalf of the motion. The Court is obligated to view the requested relief as beneficial to the government (or other joint filing party) when factoring whether to grant the same, or not.

Oddly, I just had a joint motion for bond redetermination denied by the Superior Court in DC (client had a 3rd DUI and was being held on a show cause for probation violation). That is exceptionally rare, and despite my impassioned plea, and rather luke-warm, tepid support by the government, the judge did her own thing. Just goes to show no matter how strong a joint motion is, the final arbitor is always the judge!(laughing). Those of you who have had favorable plea agreements nixed by the Court are too aware of the odd quirks that a judge can take despite the agreement of all parties on how the case should move forward.

Do you have a procedural question or concern in Federal or State Court? Call us! We can help -- 703-402-2723 or 1-800-579-9864.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.

Saturday, April 11, 2015

How can a non-profit organization engage in for profit work?

I was recently asked the following question on an online legal website:

I am a member of a Church Vestry in Virginia. The church is a 501(c)(3), and it owns a piece of retail property. If we lease the retail property to generate income, are we subject to an unrelated business income tax or would we fall within the exception for rental income?

This question is best answered by providing the rule-of-thumb regarding IRS tax consideration of non-profit activities: if the activity is designed to generate money that is not re-invested into the business, but rather creates a profit or loss for the owners (or "insiders"), then the organization engaging in the activity risks losing tax exempt status.

In the example above, the tax exempt organization should create a separate corporation apart from the church.

The risk here is that the IRS will determine that the profit you generate from the commercial enterprise represents a "for-profit" engagement designed to benefit the vestry of the church (insiders) -- and thereby revoke the tax exempt status for the entire 501(c)(3) organization. Generally, churches are fairly bullet proof (501(c)(3) organizations can engage in most conduct except most campaigning and legislative lobbying), but commercial real-estate is rarely ever a non-profit mission. As such, the proper recommendation in this instance -- create a separate corporation that handles for-profit aspects of the business, and leave the church and church activities as tax-exempt.

For more information on f 501(c)(3) organizations and permissible activities, see:


Do you have a tax questions? Give us a ring! We've helped small and medium businesses throughout the country overcome tax and management challenges. 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.