Lawyers.com Blog

Buyer's RemorseU You May Be Able to Cancel Your At-Home Purchase

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 05 Nov 2009 09:21:00 -0500

I recently considered replacing some carpet in my home, and my first call was to one of the companies that offers at-home appointments where they'll measure the space, show you samples and provide quotes on the spot.

The salesman who came to my house was talented. Even though the quote was about 300% more than I hoped to pay, he had an answer to my every sales objection. He repeatedly cut the price. He asked me how low it would have to go for me to sign a contract on the spot (then called his manager for approval to drop it even further). Then he casually mentioned, "Plus, if you sign a contract now, the Federal Trade Commission rules say you legally have the right to cancel it within three days at no cost to you. That gives you time to sleep on it."

I signed a contract on the spot--after all, I could cancel it!--and immediately after he left, I had second thoughts. I hadn't comparison shopped. The final price was still more than I'd budgeted. After doing a bit more research, I decided to cancel the order. But first I wanted to research the Federal Trade Commission's Cooling-Off Rule.

The rule gives you three business days to cancel a purchase of at least $25 if you made the purchase at home or another location that isn't the seller's permanent place of business. The sales person must tell you about your cancellation rights when you make the purchase, the contract or receipt must include the cancellation policy, and the sales person must give you two copies of the cancellation form.

Some types of purchases are exempt from the cooling-off rule. These include:

Phone and mail-order purchases
Purchase that aren't intended for personal, family or household use
Purchases that were negotiated at the seller's permanent place of business, even if the contract was signed elsewhere
Real estate, securities, insurance, motor vehicle, and arts and crafts purchases
Home maintenance and repairs
Purchases related to emergencies

In my instance, the salesman told me about the cancellation policy, but didn't give me copies of a cancellation form and the contract didn't include cancellation language. (In fact, it said that the contract couldn't be cancelled.) I was a little concerned about whether I'd actually be able to cancel the contract, but I took a few steps to ensure that the purchase was cancelled.

First, I called the carpet company and told them I'd like to cancel the order per the FTC's three-day cooling off rule. The man I spoke to assured me that the order would be cancelled, and I asked him to email or fax written confirmation of the cancellation to me.

I also checked with my credit card to see if the deposit I'd paid had been refunded. After two business days, no sign of a refund appeared, so I wrote a letter to the company, and included a copy of cooling-off rule from the FTC's website. In the letter, I included my order number, detailed my conversation with the person who confirmed my cancellation and referenced the FTC cooling-off rule. I sent the letter certified mail, and ensured that it was postmarked within three business days of my purchase.

About a week later, I had my refund.

If you unsuccessfully try to get a refund that you're entitled to under the FTC's cooling-off period, you should contact the FTC at Consumer Response Center, Federal Trade Commission, Washington, DC 20580. You should also see if your state has its own cooling-off rule, because state consumer protection agencies may also be able to assist you.

If you made a partial or complete payment using a credit card, contact the card issuer to see if you can dispute the charge.

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PepsiCo's $1.26 Billion Mistake: Don't Ignore a Lawsuit

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 03 Nov 2009 09:28:19 -0500

Someone at Pepsi just learned an expensive lesson: If you're being sued, don't ignore the lawsuit.

In Pepsi's case, the soft drink manufacturer and two of its distributors were sued in Wisconsin court. In April, notice of the lawsuit was sent to the company's offices in North Carolina, where the company is incorporated, but didn't make it to the company's New York-based legal department until September. It then got buried on the desk of a secretary who apparently was busy working on other projects.

But the courts don't twiddle their thumbs while waiting for a defendant to realize they're being sued--even when it's a defendant as big as PepsiCo. Instead, the case moved ahead in Pepsi's absence, and in September the judge who was hearing the case entered a default judgment against the company and awarded the plaintiffs $1.26 billion in damages. About a week later, Pepsi finally learned of the lawsuit.

Needless to say, Pepsi has apparently been scrambling since learning that it owes a 10-figure sum, and has asked the courts to vacate, or throw out, the judgment.

Now, Pepsi has deep pockets, and can afford to spend a lot of money to avoid paying even more money to the plaintiffs who brought the lawsuit. But the story reminds me how easy it would be to make the same mistake.

Fortunately, I've never been sued, but because I have no first-hand experience with litigation, I can imagine how I'd react if I learned someone was suing me. My initial response, "I've been sued! How did this happenU And what does this meanU I need to find a lawyer to help me make heads or tails of it." My next response would be the critical one: I could either find a lawyer, or I could procrastinate. Let's face it, humans have an incredible ability to procrastinate when faced with something challenging or unfamiliar.

The danger of procrastinating is that sometimes we don't decide to act until it's too late. When it comes to court cases, "too late" means you could be on the hook for a lot of money (in a civil case) or jail time and fines (in a criminal case). This is because--if you don't show up to defend yourself--the courts have the discretion to listen to the plaintiff or prosecutor's case, then find you guilty based on the evidence presented against you.

Pepsi, and everyone who's ever ignored a lawsuit, do have a few options. If a default judgment is entered against you, you can go to the court, explain why you failed to defend yourself, and ask the court to set aside the judgment. You'll have to show that you failed to respond to the lawsuit by mistake; that you promptly addressed this issue after learning about the default judgment; and that you have a good defense to the lawsuit. The judge doesn't have to overturn the judgment, but should if you make a good case. Once you've persuaded the judge to overturn the judgment, you'll be back at square one, and will still need to defend the charges in the initial lawsuit.

The lesson learned: Ignoring a lawsuit doesn’t make it go away, but almost certainly guarantees that it will cost you more to resolve in the long run.

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Don't Miss Out on Medicare Open Enrollment

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 29 Oct 2009 09:28:46 -0400

I couldn't even count how many health insurance related discussions I've had in recent months. The current debate continues among friends, between politicians, within families, in Congress, at the workplace, on talk radio and even on Facebook. These days, you can be forgiven if your eyes start to glaze over at the mention of health insurance. While it's an important debate, I think we're all starting to suffer from health insurance fatigue.

But if you are enrolled in Medicare, there's one important message you shouldn't ignore: Open enrollment begins Nov. 15 and runs through the end of the year.

Medicare is the government-run health insurance program for people who are 65 and older, plus some younger people with certain diseases and those with end-stage renal failure. During the last 6 weeks of the year, Medicare allows its participants to make changes to their plans. This period is known as open enrollment. Any changes you make will take effect on Jan. 10, 2010.

If your health has changed significantly in the last year, or if you're taking different prescription drugs, it's worth evaluating your current Medicare coverage and see whether a different Medicare plan would offer better coverage. Medicare offers a couple tools to help you makes these comparisons:

A tool to help you find and compare health plans
A tool to help you find and compare prescription drug coverage

When comparing plans, Medicare recommends you consider the following:

Out-of-pocket costs, including premiums, deductibles, co-pays and co-insurance
Included benefits, including extras such as vision and dental coverage
Doctors, hospitals and pharmacies that participate in the plans and whether you'll need referrals to see specialists
Whether your prescription drugs are included in the drug plan, and the out-of-pocket drug costs, including premiums and co-pays
The quality of care and performance provided by participating doctors and hospitals

Once you've evaluated the plan and prescription options, there are a few ways in which you can enroll:

Online on Medicare.gov
By calling the plan directly
By calling 1-800-MEDICARE (1-800-633-4227) or 1-877-486-2048 for TTY users

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The Dangers of Sexting

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 27 Oct 2009 08:26:57 -0400

Former NBAer Reggie Miller does it. Annie on TV's 90210 did it. The View's Elisabeth Hasselbeck has even admitted to accidentally doing it.

These days, there seems to be no shortage of stories about people who are sexting, or sending explicit photos and text messages via their cell phones or computers.

The trend isn't limited to celebrities and fictional TV characters. An increasing number of news reports focus on adults and minors who have run afoul of the law because of sexting. Just this week a New Jersey teacher was charged with endangering the welfare of a child after he allegedly sent sexually-explicit text messages to a student. And in Beaumont, Texas, last week, three students were barred from participating in extracurricular activities because they were allegedly sexting in violation of school rules.

According to renowned attorney Gloria Allred:

Teens who participate in sexting, and adults who sext with minors, could face criminal charges for child pornography or criminal use of a communications device
Adults and minors who are convicted of sexting-related charges could face probation or could be incarcerated, and the criminal charges would remain on their record indefinitely
Adults and minors who are convicted of sexting-related charges could also be labeled as sex offenders, which could require them to register with local law enforcement authorities, notify neighbors of their sex offender status and include them in sex offender databases

In fact, just last week a Pennsylvania state legislator introduced legislation that would make it a summary criminal offense for anyone under the age of 18 to send sexually images or videos using a phone or computer.

Unfortunately, most parents don't seem to realize the potential threats that sexting presents. A recent Lawyers.com study found:

One-third of parents of teens aged 13-18 are unaware of the practice of sexting, or don't understand what it involves
Only one in 10 parents believes their teen is sending or receiving sexts
64 percent of the parents surveyed do not think their teens have ever engaged in any sexting

One bright spot in the survey: About 70 percent of the parents surveyed say they understand the potential legal consequences of sexting, and a majority of parents say they've discussed the dangers with their children.

If you have teenage children, you should discuss with them the potential ramification of sexting. Not only could your child face criminal legal charges for sexting, but they could also suffer socially.

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Common Sense Tips to Staying Safe on Halloween

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 22 Oct 2009 09:34:30 -0400

As a kid, Halloween was one of my favorite holidays. My friends and I would plan elaborate costumes, map out routes that were guaranteed to maximize our candy collections, and set off immediately after dinner to spend a few hours trick or treating. Our only rules: Don't eat candy that looks tampered with, don't eat fresh fruit and don't eat homemade treats.

Halloween today bears little resemblance to the holiday I knew as a child of the 1970s, because today's trick or treating incorporates many more common sense rules designed to keep kids safe.

If you have little ghosts and goblins who are anxiously awaiting the arrival of October 31, now is the time to start talking to them about Halloween's ground rules, and make sure they understand how to stay safe when collecting candy.

Costumes

If you're buying a costume--including wigs and accessories--make sure they are fireproof or fire retardant. If you're making a costume, avoid flimsy pieces (such as long skirts or baggy sleeves) that could easily catch on fire.
If your child is wearing a mask, ensure the eye holes are large enough that your child can clearly see straight ahead and off to the sides. Consider makeup or face paint instead of a mask.
Avoid oversized costumes a child could easily trip over, or others could step on.
If your child's costume includes accessories such as a wand, broomstick or knife, make sure that the accessory is flexible or will break easily if the child accidentally falls on it.
Add reflective tape to your child's costume if they will be trick or treating after daylight hours, and have your child carry a flashlight.

While Trick or Treating

Younger children should be accompanied by an adult when trick or treating.
If your children are old enough to trick or treat without an adult, insist that they limit their visits to homes where they know the residents, and make sure you know the route they'll be taking and establish a curfew.
Try to limit trick or treating to daylight hours.
Remind kids to observe basic safety rules such as staying on sidewalks, avoiding alleys and looking both ways before crossing the street.
Although it's easy to get excited when trick or treating, kids should walk, not run, between houses.
Counsel your children to be courteous to homeowners, and avoid cutting across people's lawns or through their back yards.
Although it's called "trick or treating," no one likes a vandal. Make sure your kids understand that egging cars, toilet-papering house and other Halloween "tricks" are unacceptable.
Remind your children that they should never enter a stranger's house or get in a car with a stranger.

For Homeowners

If you use candles in carved pumpkins, make sure the pumpkins are placed in a location where kids and animals won't disturb them. Better yet, use battery-operated candles or glow sticks.
If you won't be at home to hand out treats, turn off your porch lights.
Avoid distributing homemade treats, which are likely to be thrown out. If you're opposed to distributing candy, consider coins, healthy alternatives or inexpensive Halloween toys. (If you're giving out toys, avoid giving small items, which are possible choking hazards, to children aged 3 and younger.)
Remove any tripping hazards, such as flowerpots, on your driveway or sidewalk leading to your front door.

Enjoying the Treats

Instruct kids not to eat any treats until they've gotten home and you've had a chance to inspect the candy for evidence of possible tampering.
If your child has nut allergies, give them an extra reminder not to eat treats before you've had a chance to examine them.
If you have small children, make sure you've removed any treats that could be a choking hazard.

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Continue reading "Common Sense Tips to Staying Safe on Halloween"

Understanding School Disciplinary Policies

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 20 Oct 2009 09:32:16 -0400

Before "Balloon Boy" stole the headlines last Thursday, another little boy was making the news. Zachary Christie is the cute first grader who bought a camping tool--which included a combo fork, spoon and knife--to school so he could use it when eating lunch. In doing so, Zachary inadvertently violated the school district's zero-tolerance weapons policy. He was initially suspended and sentenced to 45 days in reform school before the school district came to its senses and let him return to classes.

The incident seemed to leave most people expressing disbelief over the ridiculousness of some school disciplinary policies. But this isn't the first time that stories like this have made headlines. In the past, I've also heard about kids getting suspended for carrying aspirin and other over-the-counter drugs that most of us would consider to be harmless.

I think every parent with school-aged kids who hears these stories probably thinks to themselves, "That could just have easily been my child." But for every kid who inadvertently violates school rules, many more kids legitimately break the rules.

Most public school discipline issues are handled with a simple time out or in-school suspension, which doesn't impinge on a student's access to education. But out-of-school suspensions or expulsions have become more common thanks to zero-tolerance policies. Unfortunately, suspensions and expulsions often stay on your child's permanent school record and may put them at a disadvantage when applying for college.

Each state, and sometimes even each school district, has specific rules for how a school disciplinary process must be conducted, but there are some general principles of federal law which apply.

Students can typically be suspended or expelled for:

Drug, alcohol or weapons possession
Assaulting other students
Repeated disruptive behavior

If your child attends a public school, they are entitled to what's called "due process" before they can be suspended or expelled. Due process means that the suspension or expulsion must be done in a fair and evenhanded manner. This generally means that students and their parents have the right to:

Know the school's rules ahead of time
Be given meaningful notice of the charges
Have an opportunity to be heard in an appropriate setting

Familiarize Yourself With The Rules

At the beginning of the school year, your child should have received a student handbook or other document that spells out the rules everyone must follow. (These rules are often posted prominently at school, too.) You and your child should review these rules together when you receive them so you both understand what is and is not acceptable.

If your child is facing disciplinary action and the school hasn't made the rules available to each student, you may be able to argue that your child didn't know of the rule that he or she is accused of violating.

Understanding Adequate Notice

If your child is being suspended or expelled, you should receive a detailed oral or written notice of the charges, including:

A description of the behavior that violated school rules
A description of the evidence
The number of days of suspension, and when the suspension begins and ends
A specific date, time and location at which you can appear to challenge the suspension or expulsion

The Appeals Process

At the appeals hearing, school representatives will present the evidence against your child, and you'll have the opportunity to present evidence in your child's defense. Consider hiring an attorney to represent your child, particularly if there is the possibility of criminal charges. Your child doesn't have to answer questions asked by the school or the police.

In many public school districts, parents may also appeal a suspension or expulsion decision to the school board or a special appointed committee. Even if your child has already served out a suspension before an appeal can be processed, you should appeal the decision if you think it was unfair, so that the punishment doesn't continue to be a black mark on your child's school record.

Related Links:

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Don't Let Employers Discriminate Against You Because You're Pregnant

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 15 Oct 2009 09:33:27 -0400

It's a common story: A woman is a superstar at work, but as soon as she announces that she's pregnant, she's falls out of favor with her supervisors. Or a woman goes on maternity leave, only to get laid off while she was away from her job. Or a woman applies for a job, but the prospective employer seems to lose interest when they learn she is pregnant.

The Pregnancy Discrimination Act of 1978, an amendment to Title VII of the Civil Rights Act of 1964, makes it unlawful for an employer to discriminate against you because of your pregnancy. Unfortunately, many companies fail to heed the law.

The PDA says that discrimination due to pregnancy, childbirth or related medical conditions is unlawful sex discrimination. It requires employers to treat pregnant women in the same way as other job applicants or employees with similar abilities or limitations.

The PDA covers hiring, pregnancy and maternity leave, health insurance and fringe benefits. Under the PDA:

An employer cannot refuse to hire you because of your pregnancy as long as you can do the major functions of the job
If you are temporarily unable to do your job because of your pregnancy, your employer must treat you the same as any other temporarily disabled employee. For example, the employer should provide modified tasks, alternative assignments, disability leave or leave without pay.
Your employer must permit you to work as long as you are able to do your job
Your employer must hold open a job for a pregnancy-related absence for the same length of time jobs are held open for employees on sick or disability leave
If your employer provides health insurance to its employees, the insurance has to cover expenses for pregnancy-related conditions on the same basis as it does for other medical conditions
Pregnancy-related benefits must be available to all employees, regardless of marital status
You should be treated the same as other temporarily disabled employees for purposes of crediting of seniority, vacation calculation, pay increases or temporary disability benefits

Documenting Your Case

If you think you are or will be discriminated against because of your pregnancy:

Write down all relevant details, including the date, time and place and what was said during discriminatory conversations. Include the names of participants and witnesses, and keep a copy of these notes at home.
Continue to do your job, and start documenting how well you're performing
Copy your performance reviews and other evidence that shows how well you've done your job, and store those copies at home
If you belong to a union, contact your union representative to find out whether you can file a grievance or if there's another complaint process
Talk to your human resources department to file a complaint or learn about the company process for filing a complaint
Call a local women's rights or civil rights group for help

Proving a PDA Violation

If you're unable to resolve the problem through dispute resolution processes at your company or with your union, you may have to file a complaint with a government agency. You can file charges against the employer with the US Equal Employment Opportunity Commission, and with state or local agencies that enforce anti-discrimination laws. There are very short time limits on how long you can wait to file a charge against your employer, so it's important to act quickly when making an EEOC complaint.

To prove pregnancy discrimination, you must first show that your employer knew you were pregnant. You must also show that, because of the pregnancy, your employer took some adverse employment action against you or denied you benefits that other employees received. You may also win your case if you can show your employer systematically discriminated against pregnant employees and/or job applicants. You're not required to prove that your employer acted intentionally or with any ill will.

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Understanding Your Rights to Free Speech at School

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 13 Oct 2009 09:24:35 -0400

For many kids, school provides their first opportunity to publically test boundaries and express themselves. Maybe your teenager wants to organize a school rally to promote an unpopular position in your community. Perhaps your son wants to wear a t-shirt that announces his support for a controversial political candidate. Or maybe your daughter has written a blog posting that criticizes a teacher. Can school administrators try to stifle your child's right to free speechU

The to the US Constitution allows you the freedom to speak, write and meet freely with others. In other words, the government cannot censor you. The First Amendment also gives students the right to freely express themselves at a public school. (Because private and parochial schools don't receive taxpayer money, these schools can place greater restrictions on a student's right to free speech.)

The US Supreme Court has said public school officials can't censor you or your children unless officials have a "reasonable expectation" that your expression will cause a material and substantial disruption of school activities, or invade the rights of others.

But there are some limits to a student's right to express himself or herself. For example, a student can't stage a sit-in protest that blocks the school's entrance or use obscene language that would be offensive to some students hearing it.

Some public school officials have tried to punish students who make provocative political comments or joke about school violence, claiming the student has made a terrorist threat. But to be considered a threat, the comments must:

Be intended to be seen as a threat by other people
Be so clear and convincing so as to cause someone else to believe you intend to carry out your threat
Cause other students to reasonably fear for their safety

Dress Codes

Students often communicate their opinions through their clothes. But more and more schools are regulating what students can wear with dress code and uniform rules.

State laws about public school dress codes vary considerably, so it's best to contact your local American Civil Liberties Union chapter to learn about laws in your state. In some states, for example, dress codes and hair codes can only be written to prevent safety hazards. In some other states, more restrictive dress codes are permitted unless they are really unreasonable or discriminatory.

Cyber Speech

It's increasingly common for students to criticize school policies and officials on the Internet. The Supreme Court has decided that Internet speech has the same constitutional protections as opinions expressed in a newspaper or other written publication.

Your rights do vary, however, depending on whether you're expressing yourself online on your own time or as part of a public school project. If you're using your own computer at home, you have a lot more leeway in what you can say. But you still can't say anything that you know (or should know) is false and could injure someone's reputation. That might be libel or slander, for which you can be sued.

If you express yourself online as part of a class, your speech has less protection, and you may even be restricted from talking about your offsite cyber project while at school. If you access the Internet on school-owned computers, your browsing may be restricted by filtering software designed to protect minors from inappropriate cyber content. The federal Children's Internet Protection Act requires public schools and libraries to use filtering software if they receive federal funding for Internet installation. Many states have also passed similar laws.

School Newspapers & Zines

Students are allowed to hand out an independently-produced newspaper or leaflet in school, as long as it isn't indecent, and it doesn't materially and substantially disrupt school activities. But the school can place limits on the time, place and manner in which a student hands out written material. If students are putting out an official school paper, school officials can censure the paper if they think the content is inappropriate or harmful, even if it isn't obscene or disruptive.

Pledge of Allegiance

The Supreme Court has ruled that forcing people to say something they don't want to say is also a violation of the First Amendment. So no one can make a student recite the Pledge of Allegiance, or even require you to stand while others are reciting the Pledge.

Related Links:

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Work from HomeU Don't Overlook the Home Office Tax Deduction

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 08 Oct 2009 09:46:18 -0400

When people ask, I tell them that one of my favorite things about being a freelancer is that I can work from anywhere as long as I have my computer, cell phone and an internet connection. However, most of my work is done from the comfort of my home office.

Each year when I prepare my taxes, I still get a bit nervous about taking the home office tax deduction. I'm confident that I'm entitled to it, and the IRS has never questioned whether I'm eligible for the deduction, but I've heard many vague threats, warnings and horror stories about home office deductions.

The week of Oct. 8 is Improve Your Home Office Week, so I decided to take a fresh look at the home office deduction to confirm that I'm both eligible for the tax deduction and that I'm maximizing the deduction.

The Basics

The tax deduction for the business use of your home is often called the home office deduction. The deduction has different requirements for people who are self-employed and people who work for others. Nonetheless, the basic requirement is the same: To deduct expenses in connection with the business use of a home, the space must be used on an exclusive and regular basis for trade or business purposes.

This "exclusive test" looks at the use of a space during the entire day. For instance, even if you use a specific part of your home for business purposes from 9 am to 5 pm on Monday through Friday, but your child uses the space for doing homework in the evenings, then it's not being used exclusively for business. Similarly, it's not being used exclusively for business if you use the space to pay your personal bills in the evenings or the weekend.

Who and What QualifiesU

To qualify for the deduction, part of your home must be used regularly and exclusively as:

The principal place of business for your trade or business, such as if your self-employed
The place where you meet and deal with patients, clients or customers in the normal course of your trade or business
In connection with your trade or business, if you use a separate structure that is not attached to your home

In addition to those requirements, if you're an employee, you can take the deduction only if:

Your business use is for the convenience of your employer, and
You don't rent any part of your home to your employer and use the rented portion to perform services as an employee for that employer

For example, if you are a teacher, you're required to teach at the school and to grade papers, and the school provides you an office to perform those duties. The school does not require you to work at home. Suppose, however, that you like to use an office you've set-up in your home and you use it for grading papers and making your lesson plans. You can't take the deduction because the business use of your home isn't for the school's convenience, since the school doesn't require you to work from home.

You can take the deduction if you use a separate, free-standing structure on your residential property. For example, if you're self-employed and you keep supplies or inventory in a detached garage, you can deduct the expenses of the garage, such as maintenance and even depreciation.

How Much of a DeductionU

In general, you can only deduct the portion of expenses that apply specifically to your home office.

For example, suppose your home is 1,000 square feet and you use 100 square feet as your home office. You can take a deduction of 10% of your whole-house expenses (1,000 divided by 100). So, if your homeowner's insurance is $1,000, then $100 ($1,000 x 10%) can be deducted.

Some other examples of deductible expenses include:

Depreciation and rent
Mortgage interest
Real estate taxes

How Do I Take the DeductionU

If you're self-employed and you normally file Schedule C with Form 1040, you need to complete and attach Form 8829. Most employees have to itemize deductions on Schedule A with Form 1040 to claim a deduction for the business use of your home, along with other work-related expenses you may have.

Related Links:

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Recognizing Signs of Elder Abuse

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 06 Oct 2009 09:01:40 -0400

After breaking her hip, my grandmother spent a month in the hospital followed by a couple of months in the medical unit of an assisted-living facility while she underwent physical therapy and regained strength in her legs. When she checked into the assisted-living facility, my family knew that--in all likelihood--her stay was just temporary. But other patients were permanent residents, because their families were unable or unwilling to care for them in their own homes.

I spent enough time at the assisted-living facility to see how well the staff treated its patients. I watched one resident, who must have had some type of memory problem, repeatedly go to the nursing station and ask the same question over and over again. This behavior might have frustrated some people, but the nursing staff patiently answered her question again, regardless of how many times they'd already answered it for her.

Before spending time with my grandmother, I imagined that assisted-living facilities might be sad, depressing places. (And I'm sure that some are.) But I came to realize that good facilities may be a lifesaver to some families that don't have the time, energy or patience to deal with a family member who has serious medical needs.

Even the most patient person may feel frustrated or angry when dealing with someone who has a diminished mental capacity or physical ailments. We've all been put in situations where we've had to take a step back in order to control our emotions and keep our temper in check. Unfortunately, domestic abuse occurs when caretakers are unable to manage their own emotions, and take their anger or frustration out on the very people who depend on them for support, or when a caretaker willfully exploits or neglects a person under their care.

October is Domestic Violence Awareness Month, and elder abuse is one common form of domestic violence. Although statistics are hard to come by, the National Center on Elder Abuse reports that:

As many as 2 million Americans age 65 and older have been exploited, neglected, abused or injured by someone they relied on for care and protection
Only about one in 14 cases of elder abuse ever come to the attention of authorities

Definition of Elder Abuse

All 50 states have laws that address the problem of elder abuse and neglect, but the laws are not uniform. Each state law specifically defines elder abuse. Typically, state law definitions include:

Physical abuse
Active or passive neglect
Deprivation of care that results in physical harm or pain and/or mental suffering

Many states include financial exploitation of the elderly in their definitions of elder abuse. Sexual abuse, which involves any form of nonconsensual sexual touching, may also be specifically addressed. Some states even include self-neglect by elderly individuals in the definition of elder abuse.

Classification of Abuse as Criminal or Civil

There is a growing trend to treat elder abuse as a criminal offense with enhanced penalties and sentences. Elder abuse statutes provide a range of criminal punishments from misdemeanor to felony, fines, and/or jail time. A few states have even included the elderly in their "hate crime" statutes.

Some state laws also create special penalties--such as double or treble damages--for those who defraud elderly consumers. In some states, minimum sentencing ranges may be set for criminals convicted of committing crimes against the elderly. There may be separate penalties for entities (such as nursing homes) and professional caregivers who abuse the elderly. In some states, nursing homes and other institutional caregivers and their works are subject to penalties including loss of license, censure and fines.

If You Suspect Elder Abuse

There are several steps you can take if you suspect someone is committing elder abuse.

If the elderly person is in immediate danger, call 911 or contact local police officials in the area in which the elderly person lives.
You can also contact the state's elder abuse hotline or the local protective-services agency that deals with elder abuse.
Contact the U.S. Administration on Aging's national Eldercare Locator at 800-677-1116.

Related Links:

Learn more about elder law on Lawyers.com
Find an elder law attorney in your area
Discuss your issues on the Lawyers.com elder lawforum
Lawyers.com Suggested Legal Books

Election Day is Fast Approaching

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 01 Oct 2009 09:32:38 -0400

The midterm elections are just a few weeks away. Voters across the country will be going to the polls on Nov. 3 to elect:

Governors in New Jersey, Virginia and the Northern Mariana Islands
State legislators in New Jersey, Virginia and the Northern Mariana Islands
Mayors in Boston, Detroit, Houston, Los Angeles, New York, San Antonio, Seattle and many smaller towns
Representatives to the US Congress in California and New York
Representatives to many city and county government positions, school boards and special districts across the country

In addition, many ballots will contain referendums and citizen initiatives.

Registering to Vote

If you're not registered to vote, the deadline to register is rapidly approaching. You'll need to register if you've never previously registered or if you've moved since you last registered to vote.

To vote in a federal election, you must:

Be a US citizen
Be a resident of the state in which you are registered to vote
Meet your state's minimum age requirement (usually 18 years old at the time of the election or 18 years old at least 30 days before the election)

Some states also ban you from voting if you've been convicted of a felony or if a court has judged you to be mentally incompetent.

It's important to remember that each state has different registration rules. While some states may allow you to register on the day of the election, most states require you to register at least 30 days before the election. Some states allow you to register by mail and others require you to register in person. And some states will allow you to vote by absentee ballot immediately after you register, but others will require you to vote in person in the first election after you register.

Absentee Voting

If you're unable to vote in person on Election Day, you may be able to vote by absentee ballot or during your state's early voting period.

In recent years, many states have started to offer early voting, which enables registered voters to cast their ballots, in person, at designated sites for several weeks prior to the election. This reduces the lines on Election Day, and enables you to vote at a date and time that is convenient to you.

Students, active military personnel and other people who will be unavailable to vote on Election Day or during the early voting period should request an absentee ballot. This mail-in ballot allows you to vote in advance if you're unable to vote in person at a polling place. You can request an absentee ballot from your local election officials.

Know the Issues

Almost everyone who's ever voted has had the experience of looking at a ballot and being confronted with a long list of unfamiliar names and confusing referendum questions about obscure issues. While you may have taken the time to familiarize yourself with the major candidates and their platforms, it's more difficult to learn about the candidates for lesser-known positions.

Many local and state bar associations will evaluate the candidates for elected legal positions, such as judges and attorney general. Other groups, such as newspapers, as well as partisan and non-partisan organizations, will also publish printed or online candidate guides to help you get a better sense of the candidates, their qualifications and their positions on important issues. If you are relying on these guides, it's important to understand any biases of the organization that has compiled it.

Before heading to the polls, review a sample ballot--which should be available from local election officials--so that you know what votes you'll be casting. You're allowed to bring written materials into the voting booth with you, so consider filling out the sample ballot so you can copy your answers when you're casting your official vote.

Related Links:

Learn more about voting rights on Lawyers.com
Discuss your issues on the Lawyers.com civil rights forum
Lawyers.com Suggested Legal Books

Beware of Credit Card Skimmers

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 29 Sep 2009 09:41:05 -0400

I use my credit card for almost all of my purchases, because it helps me track my spending and manage my budget. On days when I'm running a lot of errands, I swipe my credit card so frequently that I could do it with my eyes closed: Swipe. Press "Credit." Press "OK." Sign in the box.

These days, however, it pays to be a bit more attentive when using your credit, debit or ATM card. That's because clever thieves have a new weapon in their arsenal of tools designed to part you from your money: the card skimmer.

Skimming, as it is known, occurs when a thief uses a device, known as a skimmer, to read and record the magnetically stored information on your credit, debit or ATM card. Skimmers can be placed on top of legitimate credit card readers and ATM machines, or can be handheld devices. Because the magnetic strips of credit, debit and ATM cards are electronically encoded with data such as your name, account number and card expiration date, thieves can then copy this information onto counterfeit credit cards that are used for fraudulent purchases.

Unfortunately, there are no regulations prohibiting or limiting the sale of credit card skimmers, so you or I could buy one today for just a few hundred dollars. This makes it very easy for dishonest business employees and other thieves to start skimming information from your credit, debit and ATM cards.

There are a few ways that you can protect yourself against skimming.

If you give your card to a store clerk or waiter, try to keep an eye on it. Some thieves will pay store employees to swipe a credit card through a skimmer--which may be smaller than a pager--before they swipe your card through the business's regular card reader. The information on the skimmer is then sold to counterfeiters who download the information and use it for fraudulent transactions.
When using machines where you personally swipe your card, notice whether the credit card swiper looks different than normal, or if it seems to be clunky, or shoddily attached to the machine. (But know that skimmers may be installed inside the machine, or may be otherwise unrecognizable.) Gas pumps, ATMs and DVD rental kiosks are more likely to be outfitted with skimmers because employees do not constantly monitor the machines. This makes it easy for a thief to quickly attach a skimmer at night or on the weekend. ATM machines may also be outfitted with pinhole cameras designed to record your PIN number, so make every effort to cover the keypad when entering your PIN.
Carefully review your monthly bank and credit-card statements for any signs of fraudulent activity. If you don't recognize a charge or withdrawal, contact your bank or credit card company immediately and dispute the charge. In the United States, you can only be held responsible for up to $50 of fraudulent activity on your credit card. However, your liability can be much higher on ATM and debit cards. If you notify your bank within two business days of learning of that your card has been stolen or used fraudulently, your loss is limited to $50. If you wait more than two business days, you could be liable for up to $500 of losses, and if you wait more than 60 days to report fraudulent activity, your losses could be unlimited.

Related Links:

Learn more about ways personal information is stolen on Lawyers.com
Discuss your issues on the Lawyers.com criminal law forum
Lawyers.com Suggested Legal Books

The Hidden Benefits of Credit Cards

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 24 Sep 2009 09:19:04 -0400

Credit card companies have been getting a lot of bad publicity in recent months. If you have a credit card, you've probably gotten a letter from the card issuer telling you that your credit limit has been cut, or your interest rate is rising, or even that they're closing your account.

That said, credit cards still offer some great benefits, but many cardholders never take advantage of these extra features, or even realize they exist. Did you know, for example, that many credit card companies will double the length of the warranty on a purchase you charge to your cardU Several months ago the mouse on my laptop computer stopped working. The computer came with a one-year manufacturer's warranty, and the mouse quit after 18 months. I called up my credit card company and provided them with some basic information. Within a day they told me to take the computer for repairs and then send them the bill so I could be reimbursed for the cost of repairs. Ultimately, it saved me about $400.

These extra credit card benefits can save you money, time and headaches if you take advantage of them. Among the more popular:

Extended Warranty: Many credit card companies will double the warranty on your purchases for up to a year. If the item breaks after the manufacturer's warranty expires, but during the credit card company's extended warranty period, the credit card company will coordinate repair work or reimburse you for repair costs.

Theft, Loss and Damage Coverage: Did you wash your new iPodU Was your new camera stolenU Many card companies will replace or repair an item if it is lost, stolen or accidentally damaged within the first 90 days that you own it.

Return Protection: If a merchant refuses to let you return an item, your credit card company may refund you the item's purchase price, provided it's still in like-new condition and you bought the item recently.

Loss and Damage Insurance on Car Rentals: If you charge a car rental to your credit card, you may be able to decline the collision damage waiver (CDW) because your credit card company automatically provides the same insurance for free. Before you rely on this, read the fine print. You may be ineligible for the coverage in some foreign countries or if your rental is for an extended period of time.

Travel Insurance: Traveling by plane, train, bus or boatU Your credit card company may automatically provide travel insurance that covers you in case of accidental death or dismemberment.

Protection in the Event of Merchant Disputes: Did a merchant overcharge you, make promises that they haven't honored or sell you one thing then deliver anotherU You can dispute a charge with your credit card company. They'll investigate your claim and refund your money if they find in your favor.

You're only eligible for these benefits if you charge the purchase to your credit card. Plus, not every credit card company offers the same benefits, so you'll want to learn which benefits come with your cards. Look on your credit card company's website for a "Card Benefits" section, or call the company and ask them to send you a list of the card's benefits. Be sure to read the fine print, because some exclusions may apply.

Related Links:

Learn more about choosing a credit card on Lawyers.com
Discuss your issues on the Lawyers.com general consumer rights forum
Lawyers.com Suggested Legal Books

Explore the New Features on Lawyers.com

nospam@example.com (Jennifer King - Lawyers.com) — Tue, 22 Sep 2009 08:57:18 -0400

Everyone needs a makeover from time-to-time. Maybe you changed your hairstyle, or bought clothes from a new store. Maybe you painted your bedroom, or re-landscaped your yard.

We've been working behind the scenes to give Lawyers.com a makeover, too. Some of the changes are practical yet subtle, like the new drop-down menus at the top of each page that allow you to quickly jump to different sections. Other new features, like our presence on Twitter and Facebook, can actually be found elsewhere on the internet.

We hope you'll take some times to explore the new Lawyers.com. Among the improvements you'll find:

If you come across a Lawyers.com article you like, you can now email it to friends, quickly bookmark it or share it on De.lic.ious, Digg, Facebook and other sites. Look for the "Share" button on the right-hand side of the page, beneath the "Legal Help & Resources" menu.
You'll now be able to move around Lawyers.com more quickly than before using the menu bar that appears at the top of every page. These dropdown menus let you jump to the most popular sections on Lawyers.com, including the Forums, Ask a Lawyer, and in-depth articles about your most pressing legal needs.
We've improved our directory of lawyers to include Client Reviews Ratings. If you're hiring a lawyer, you can review feedback from past clients about specific lawyers, and once you've worked with a lawyer, you can add your own review. Starting in October, you'll also be able to search for lawyers based on their specific ratings.
Do you TwitterU If so, you'll want to follow Lawyers.com on Twitter, too. We're twittering about how different legal issues can affect you personally, plus we're twittering a daily "Today in legal history…".
Is Facebook one of your favorite sitesU Then you'll want to become a Lawyers.com fan on Facebook. Once there you'll find links to our latest blog postings, video links and a discussion board.

While we've added some terrific new features, we've kept the most popular sections of Lawyers.com:

Visit our Legal Forums, where you can post your legal question on topic-specific message boards, respond to messages posted by others, and read the questions and responses that people have previously posted.
Chat live with a lawyer, or ask a question in advance, during our regularly scheduled chats. This week's chats focus on property insurance, bankruptcy, debt & credit, and wills, estates & probate.
In addition to the Lawyers.com blog (which you're reading right now), we also post blogs from lawyers across the country, writing on a variety of legal topics.
Do you have a great legal question that you think other people might also be dealing withU Each day we select a few great questions to be spotlighted in our Ask a Lawyer feature.

We hope you'll take some time to explore the new Lawyers.com, and to connect with us on Facebook and Twitter. After you've had a chance to look around, we hope you'll tell us what you think!

Continue reading "Explore the New Features on Lawyers.com"

Fighting with Your LandlordU Know Your Rights as a Tenant

nospam@example.com (Jennifer King - Lawyers.com) — Thu, 17 Sep 2009 08:34:23 -0400

Almost everyone who's lived in a rental home has a bad landlord story. In my case, my apartment building was sold and the new landlord--to be blunt--was cheap. He was constantly on the lookout for ways to make a few more dollars off of his tenants, or ways to keep from spending more money on the building. The most memorable example of this behaviorU One hot summer day, the landlord removed the two window air conditioners that had been in my unit when I first moved in, then tried to rent them back to me at a cost of $200 per air conditioner per year. Fortunately, I made it clear to him that I knew my rights. Within a couple days, the air conditioners were reinstalled and I didn't have to pay an extra dime to use them.

When I had trouble with my landlord, I turned to two resources: my lease and local landlord-tenant laws. These legal documents explain both the landlord and the tenant's rights and responsibilities, as well as the process for solving or correcting problems. Your state, and possibly even your city, probably have landlord-tenant ordinances. In Chicago, where I live, a landlord is required to supply a copy of the laws with the lease.

Here is information about some problems you may commonly encounter when renting a home.

Security Deposits Disputes

A security deposit is intended to help ensure that you pay your rent and that the landlord is covered in case you leave the apartment with damage in excess of typical wear and tear.

If you miss a rent payment or damage the home, the landlord can make deductions from the deposit to cover those costs. However, your landlord must provide you with a detailed list of the deductions. The remaining balance of the security deposit must be returned to you, usually within 30 days after you move out.

When you move into an apartment and when you move out, take photographs of your unit. By documenting the apartment's condition when you moved in and out, you may be able to successfully dispute your landlord's claims of dirt or damage.

Maintenance & Repair Disputes

Generally, landlords are responsible for major repairs that affect the livability of your home. For example, structural repairs or a broken heater would be your landlord's responsibility. For minor day-to-day maintenance issues, your lease should detail whether you or your landlord is responsible. Minor maintenance issues would include:

Mowing the lawn and shoveling snow from the sidewalk or driveway
Minor repairs, such as dripping faucets
Paying utilities, such as water, gas, electric and telephone services

In most states the landlord is responsible for making sure the premises are safe and livable. This usually means the landlord must make sure that building elements are structurally sound, there is adequate heat and clean water, and that electrical and plumbing systems are safe. Often, state law or local building codes set the standards of repair or fitness for these parts of the home.

If your home has maintenance issues that your landlord is ignoring, check your lease and landlord-tenant ordinances to see how you can legally remedy the problem. For example, you may be able to hire someone to perform the repairs and deduct the cost from your rent. Or you may be able to break your lease if your landlord does not fix the problems within a certain number of days of being notified that there is a problem.

Disputes Over Access to the Premises

Even though your landlord owns your home, he or she generally doesn't have unrestricted access to it. In most states, landlords must notify you before entering your home. Typically, 24 hours' notice is required. After your landlord provides you notice, they can usually enter to make repairs, check to see if repairs are needed, or show the home to prospective renters.

Your lease may spell out when your landlord can enter the premises. Sometimes, state or local law will also detail when the landlord can enter your home with notice.

In most states, landlords can enter the premises without notice only if there's an emergency, such as a fire or broken water pipes, or if you've previously given permission for the landlord to enter without notice.

If your landlord is regularly asking to enter your home, or entering without notice, review your lease and local laws. Consider sending the landlord a copy of the lease and laws highlighting the section that addresses access to your apartment, and asking the landlord to provide sufficient notice. One of the easiest ways to keep your landlord from entering your apartment when you're home is to use a security chain or other security device that can only be disabled from within your home.

Regardless of the nature of your dispute, it pays to know your rights. Take the time to familiarize yourself with the terms of your lease and your local landlord-tenant laws. Many disputes can be resolved if you let your landlord know that you're aware of your rights. And if your landlord constantly causes headaches, consider moving when your lease is up.

Related Links:

Learn more about the rights and responsibilities of tenants on Lawyers.com
Discuss your issues on the Lawyers.com landlord-tenant forum
Lawyers.com Suggested Legal Books