Legal Residency Change in the Military

I am a in the military. My current residency is Louisiana. I would like to change my residency to Florida. What are the requirements to make this change? Also, I will be going to a 3 month school in Florida in conjunction with PCS orders to Puerto Rico. Would this help me?

Answer: to acquire a domicile of choice in a new place two things must happen:

(a) you must be in the state and

(b) while you are there and before you leave, you must intend to make it your permanent home.

Those two requirements are all that’s necessary. You don’t have to buy property in the new state, open a bank account there, vote, get a driver’s license, file a legal notice in the paper, or anything else. Physical presence, combined simultaneously with the appropriate mental intent, is all that’s required.

So your time in Florida will satisfy the presence requirement.

Unfortunately, proving mental intent can be difficult sometimes. So to prove that you really did intend to make the new state your domicile, it might be a good idea to do some or all of the things mentioned below, with the understanding that those actions are not what make you a legal resident; rather they are simply evidence that you did intend to make the state your SLR.

You do not need to live in the state for any length of time, own a home in the state, or to have an address in the state to be domiciled in it. You only need to be physically present in the state at the time you decide to make it your permanent home. You could for example, drive through the state and be so struck by its beauty that you immediately adopt it as your permanent home, but if you do not have feelings about it before you drive out of it, your domicile has not changed.

Domicile is primarily a state of mind that a certain place is your permanent home. It is a mental attachment that you carry around with you. Once you acquire a domicile it remains your domicile, even though you leave it, unless your state of mind changes while you are in another place.

If you change your state of domicile, you may have to prove it. You might, for example, have decided to stop paying state income taxes because you changed your domicile to a state with no income tax. Your old domicile, the state losing tax revenue, may question that change. Or your spouse, for example, might sue for divorce in your former domicile, and you might not like the divorce laws there. If you can prove your domicile changed, you might be able to get the case dismissed. In the case of taxes, if you cannot prove your domicile changed, you could end up owing taxes to two or more states, and require that a court decide the matter.

The best evidence of your state of mind is the contacts that other people can see you have with a specific state. For the kinds of actions to help prove your state of domicile see the list below. You may not prove successfully that your domicile has changed unless your show contacts beyond just the benefit of the legal consequences that a change of domicile would give you. You should have all your contacts with the one state you call your permanent home. If you have contacts with multiple states, it may be difficult or impossible to prove your domicile.

Actions to show intent:

1. Expressed intent, oral or written and physical presence, past and present (including duration) [Prerequisite to establishing domicile].

2. Voter registration [Important Factor]

3. Vehicle registration as a resident vice non-residence military [Important factor, but you have a choice.]

4. Motor vehicle operator’s permit [Important Factor]

5. Location of bank and investment accounts.

6. Explanations for temporary changes in residence.

7. Submission of DD Form 2058 (Change of domicile form).

8. Payment of taxes – income and personal property [Important Factor]

9. Payment of nonresident tuition to institutions of higher education

10. Declarations of residence on legal documents such as wills, deeds, mortgages, leases, contracts, insurance policies, and hospital records. [Important factor]

11. Declarations of domicile in affidavits or litigation[Important Factor]

12. Residence of immediate family.

13. Membership in church, civil, professional, service or fraternal organizations.

14. Ownership of burial plots.

15. Place of burial of immediate family members.

16. Location of donees of charitable contributions.

17. Location of schools attended by children.

18. Ownership of real property. [Important factor. However, ownership of property in another state will not disqualify.]

19. Home of record at the time of entering service.

20. Place of marriage.

21. Spouse’s domicile.

22. Place of birth.

23. Business interests.

24. Sources of income.

25. Outside employment.

26. Address provided on federal income tax return.

Generally, unless you have taken at least some of these steps, it is doubtful that you’re State of legal residence/ domicile has changed. Failure to resolve any doubts as to your State of legal residence/domicile may adversely impact on certain legal privileges which depend on legal residence/ domicile including among others, eligibility for resident tuition rates at State universities, eligibility to vote or be a candidate for public office, and eligibility for various welfare benefits. If you have any doubt with regard to your State of legal residence/domicile, you should see your Legal Assistance attorney for legal advice before deciding to change your domicile.

Regulations and Legalities Involving Cremation

When a loved one dies, it is important to know and trust that their remains will be treated in a respectful and dignified manner. For those who have chosen cremation, it is especially helpful to understand the process in order to feel at peace with the decision of how to handle the remains.

A professional funeral director will help you decide on the many options you have available when it comes to the type of funeral service and the manner in which the deceased is handled. Be sure to ask your funeral director any questions you may have. When it comes to cremation, ask the funeral director where the cremation will take place. If you are having a funeral service with a viewing, the cremation will happen when it is over. Find out if the cremation will take place at the funeral home or at another location.

Many funeral homes operate their own crematorium. This can give you peace of mind that the risks of possible mistakes are significantly lessened when the deceased doesn’t have to be transported to another facility and the cremation is performed on site.

Making funeral arrangements can be very difficult for grieving loved ones. Often times, a person will make funeral and cremation arrangements in advance in order to lessen the burden on loved ones. This can help alleviate some of the financial hardship your family members will have to endure to pay for a funeral service and / or cremation.

Here are some things to consider when deciding on cremation services:

If you are not planning on having a public viewing or visitation of the deceased, you will not need to have the body embalmed. The embalming and dressing process can add up to $2000 to the cost of a funeral. If, however, you will be having a funeral service with a viewing before the cremation, embalming will be necessary.

Caskets are not required for cremation, although a container of some sort is needed. Often times, it is a wooden casket or cardboard box. Steel caskets are never used in the cremation process. If you are having a viewing beforehand, ask the funeral home if they have caskets available to rent, because you won’t want to buy an expensive casket that will end up being cremated along with the deceased.

The cremation process can take over two hours to complete. Most funeral homes will not perform cremations everyday, because it can take temperatures of over 2000 degrees Fahrenheit to completely cremate a person and the expense of generating that kind of heat can be very expensive. After the initial cremation, the bone fragments are removed and placed into a cremulator. These bone fragments are ground into a fine powder, which are placed in a plastic bag and a sealed box. These are the remains. The entire process should not take more than a few days.

Keep in mind these legal factors: Only natural items can be cremated. Jewelry is not cremated, nor is any medial equipment, such as a pacemaker. Only one body may be cremated at a time, however in some instances a mother and infant child or stillborn twins may be cremated together in one coffin.

Knowing this information about cremation will help you and you loved ones decide on the funeral service and process that most adequately meets your needs. By being prepared for your meeting with the funeral director, you can reduce the stress and anxiety that is common in this difficult time and rest easy that you’ve made the right funeral and cremation decisions.

Your Legal Rights in a Living-Together Relationship – Common Law Marriage

This article is intended for anyone involved in a long-term, committed relationship, who has never been formally married, and wants to know his or her rights. Whether your relationship recently ended, it’s in crisis, or you just want to know whether being formally married makes a difference in this day and age, you’ll probably be surprised by what the law provides.

One common misconception is a belief that there is little legal difference between marriage and living together. This sometimes arises out of the mis belief that after a period of cohabitation (frequently believed to be seven years), a living-together relationship is instantly metamorphosed into a common law marriage. This myth, though it has the persistence of urban legend, is pure fiction. In truth, you cannot enter into a common law marriage within the boundaries of New York State. And, common law marriage has become less and less favored across the nation over the past hundred or so years.

According to my most recent research, there are only ten jurisdictions that continue to recognize common law marriage (Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and the District of Columbia), and five others that do so, but only if the relationship was established prior to a certain date (Pennsylvania, Georgia, Idaho, Ohio and Oklahoma). There are a few countries that also recognize common law marriage, or a status similar to common law marriage.

Here in New York, common law marriage has not been legally sanctioned since 1933. But the inquiry doesn’t quite end there. There are several states, New York being among them, that recognize common law marriage relationships that were established while the parties resided or sojourned elsewhere, namely in one of the aforementioned common law marriage jurisdictions. So, despite the abolition of common law marriage in 1933, our courts continue to recognize common law marriages that were established in other jurisdictions. And, this may be the case even where the couple only temporarily sojourned in such jurisdiction, all the while maintaining their domicile in New York.

In such instances, the court’s determination of whether a common law marriage was established will hinge on the legal standards of the particular state where the parties sojourned. These standards and precedent vary from state to state. And, contrary to common law marriage folklore, common law marriage states look to more than just whether the couple attained their seventh year of living together.

Some legal factors that are considered significant in common law marriage states are: (i) the amount of time spent in the state; (ii) whether the parties “held themselves out” as husband and wife; (iii) whether they functioned as an economic entity; (iv) whether they ever entered into an agreement stating their intent to be considered married (even though they never formally wed); (v) whether either of the parties was married to someone else at the time; and (vi) whether the parties actually physically resided together. Lastly, in each of these states, historically you’ve needed to be of opposite sexes.

Contrastingly, factors that typically won’t be considered significant (factors I might contend bear more directly on notions of fairness) include (i) sacrifices made by either party in entering into the relationship (what lawyers call “detrimental reliance”), (ii) the standard of living enjoyed by the parties, (iii) whether one partner might not be able to sustain that lifestyle after separation (or even support himself or herself period), and (iv) whether there were children of the relationship.

This issue most recently garnered public attention in New York when the prominent film actor, William Hurt, was brought into court by his then ex-girlfriend, an actress and dancer by the name of Sandra Jennings. The decision in that case underscored, among other things, how crucial issues of credibility can be.

The common law marriage jurisdiction involved was South Carolina, where the parties had sojourned during the filming of “The Big Chill”. The crux of Ms. Jennings’ claim was that during an argument, Mr. Hurt told her that, “as far as he was concerned, we were married in the eyes of God”, that they had “a spiritual marriage”, and “were more married than married people.” Mr. Hurt, for his part, denied ever making these statements. There was also uncontradicted evidence that the parties never held themselves out as a married couple, even while cohabiting on location in South Carolina. On the other hand, the parties did have a child together.

In the appellate court decision, which dismissed all of Ms. Jennings’ causes of action (Jennings v. Hurt, 554 N.Y.S.2d 220), the Court made particular note of the following facts: (i) that Ms. Jennings had never mentioned any conversation regarding an alleged “spiritual marriage” during her pre-trial deposition; and (ii) that a document, which Ms. Jennings had allegedly signed her name to as “Hurt”, was in fact an altered copy on which the name “Hurt” had been inserted.

As to the legal showing that was required under South Carolina law, the Court held that a common law marriage proponent must establish “an intention on the part of both parties to enter into a marriage contract…with such clarity on the part of the parties that marriage does not creep up on either of them and catch them unawares.” The evidence on this point, i.e., factors suggesting that neither of the parties considered themselves to be married, or held themselves out as such, also seemed to favor Mr. Hurt.

Another illustration of how difficult it can be to establish a common law marriage in a non-common law marriage state such as New York, involves one of my cases, which I’ll call A vs. A (I represented the claimant putative common law wife). In A vs. A, believing strongly in the case, we chose to first proceed solely under a common law marriage cause of action, forsaking in the first instance pleading non-marital causes of action, so as not to weaken the common law marriage claim. Subsequently, with permission of the Court, we added several non-marital causes of action to Mrs. A’s complaint. It was these claims, rather than the common law marriage cause of action, that ultimately served as her basis for recovery.

I am sure you will understand, from even a brief recitation of the facts, why we initially believed that Mrs. A’s case for common law marriage was a strong one. Most strikingly, Mr. and Mrs. A held themselves out as a married couple for more than thirty years. They also raised a child together (by then a grown woman), who was always led to believe that her parents were duly married. Each party wore wedding-style rings on the appropriate finger. In fact, no more than a handful of close friends and family ever knew the parties were not formally married. They were referred to in every writing, every joint account, every tax filing, etc., as Mr. and Mrs. A. And, Mrs. A had even legally changed her last name to A fifteen years earlier, upon becoming a naturalized citizen.

Further, Mr. A always told Mrs. A that they had no need to formalize their marital status, allegedly because they were in all respects a married couple. According to Mr. A, what was “his was hers”, and when they “got old”, they would get formally married. Needless to say, that day never came. Indeed, on the precipice of retirement age, Mr. A initiated their separation. By then, they’d established a more than comfortable lifestyle (including residence in a $1.5 Million penthouse apartment), a lifestyle that Mrs. A certainly couldn’t maintain on her own. And, all that Mr. A was initially offering to Mrs. A was a $50,000 per year stipend, for which in return he asked Mrs. A to quietly walk away from their thirty-plus year relationship.

The parties had also traveled widely, though they lived within the same borough of New York City for the entirety of their relationship. Yet, fatally to Mrs. A’s claim, the only common law marriage jurisdiction that they had traveled to was Washington, D.C. On this point, the Court’s decision, granting Mr. A’s motion for dismissal of the common law marriage cause of action, focused on the District of Columbia’s requirement that the parties to an alleged common law marriage must have done more than just cohabited as husband and wife; they must have cohabited after expressly agreeing, “in words of the present tense”, to become “man and wife”.

Rejecting our arguments, the Judge held that this agreement must have been actually and explicitly stated while the parties were physically present within the confines of Washington, D.C. It was inconsequential that the parties had explicitly made this kind of an avowal elsewhere. Because Mrs. A could not assert that she and Mr. A explicitly made this kind of an avowal, or even reiterated it, while physically present in D.C., her cause of action was deemed inadequate. Notwithstanding, Mrs. A prevailed in that portion of the Court’s decision that refused to dismiss several of her non-marital causes of action.

If you’ve concluded that your relationship might meet the legal criteria for common law marriage, I strongly recommend that you speak to a lawyer (preferably a family law specialist). And, for advice that you can rely on, you should plan to set aside at least a few hundred dollars for the cost of a consultation and additional legal research. The good news: if your relationship is found to be a common law marriage, you will generally have the same rights and obligations as every other divorcing spouse in this State.

On the other hand, if you’ve determined that your relationship is unlikely to qualify for common law marriage treatment (even though it may be one of significant financial interdependence), then I suggest that you read Part II of this article, which discusses a variety of other legal concepts that may be applicable to your living-together relationship.

Do You Legally Own Your Web Site?

You paid good money to have your website designed. But are you sure that you actually own it?

You may be surprised to learn that the firm that did the development work for you may actually be the copyright owner of your web site. If you retained an independent development company or individual to create your site, ownership of your site may be at risk unless you properly contracted with the developer to assign the copyright to you. In short, you may have paid a lot of money to have your site developed, only to find in the end that the developer, and not you, is the copyright owner. If you are in charge of having the web site developed within your company and ownership of the web site later becomes an issue, this may be very difficult to explain to your manager or the board of directors.

Copyright Laws Specify Who Is The Author

The two legal factors involved will be the United States Copyright Act and the contract that you may ot may not have entered with the developer. It is fairly clear under the Copyright Act that the developer would be considered to be the “author” of the web site if the developer was an independent contractor and not a bona fide employee. It is the “author” of the work that has the rights that the copyright act provides.

Works Made For Hire

For a website developed in house by an employee, the company would be considered the owner of the copyright. This is because works created by employees are considered to be “works for hire.” With a “work for hire,” the employer has the right to copyright the work and to assert all of the rights of a copyright owner.

There are cases where an independent contractor can be considered to have made a “work for hire” that vests rights in the company that contracted for the work, but the conditions for this would be very difficult to meet in the case of a web site developed by an outside firm or individual. There are 3 requirements in order for a work created by an independent contractor to be considered a “work for hire.”

The first requirement is that the work be specially ordered or commissioned by you. In most cases, this test will be met if you have contracted the web developer to create your web site from scratch and not based upon a site that the developer has previously created.

The second test is more difficult to meet. The work has to fit within one of the narrow statutory categories which will rarely apply in the case of outsourced web development work. The third requirement is a written agreement that includes a clear agreement between the parties that the work would be considered to be a work made for hire. This requires very specific wording.

Reliance On Work for Hire Status Is Not Enough

One common mistake is to assume that simply placing “work for hire” language in the contract will preserve the copyright in the party contracting for the work. This language alone is not enough. All three requirements must be met and in the usual web development relationship these conditions do not exist. So many people believe that they have the copyright to their work because they used a “work for hire” clause in their contract only to find out later that this clause does not protect their copyright.

Uncertain Ownership Can Devastate Your Business

It is no surprise that this issue of copyright ownership can have devastating impacts on your business. Without properly addressing the issue, the developer and not you would not have the right to file for copyright protection. These rights include the right to control derivative works (modifications) and the right to control publication of the work (posting on the Internet) among other rights.

Practical Solutions To Uncertain Ownership

These potential problems are best solved at the time you enter the contract with the web developer. Most developer provided contracts will be relatively silent on these issues. Silence actually benefits the developer who would usually then be the author of the work under Copyright Laws. This does not benefit the client though.

So what should the client do about this potential problem? Ideally, the original agreement with the developer should require that the developer assign all copyrights in the work to you. The contract should contain language making this assignment and it is also a good idea to require in the contract that the developer provide you with a stand-alone assignment of copyright in a form that is satisfactory to you.

From the developer’s standpoint, web developers often use templates of work that they have done for other clients when taking on new project. You can always satisfy the developer’s concerns by licensing back to the developer certain portions of the work that would permit the developer to use the basic structure of your project as a template for a subsequent project. In doing this, you may be able to negotiate on the pricing aspects of the project and it could work to your benefit. Just be careful not to give too much back to the developer so that the developer can just change the logo and some colors and use your unique layout for another client. You might also consider prohibiting the developer from using your template in connection with a business that competes or otherwise is in a position to take business away from you.

The last alternative that can be used is to have the development company retain the copyright and license the use of the content to the client. This is clearly not the preferred course for the client, but is a method often proposed as a compromise by the developer.

Regardless of the method that you use, be certain that when you pay for development work that you are contractually given the right to use, and preferable exclusively control the content that you have developed.