Illinois Asset Protection for Business Owners & Entrepreneurs

Tomorrow morning, we have another meeting with a prospect regarding an asset protection for a business owner that has a lot of prior judgments from a failed business venture. In today's economy, many experienced business owners have experienced significant failure resulting in lawsuits, judgments, and liability risks. Part of the conversation tomorrow is how to structure future business enterprises to deal with the judgments and liability risks that exist in the past. First, we must be careful because under Illinois law, an attorney must not assist an entreprenuer or small business owner commit a fraud. Generally, future planning that involves future assets is different than planning with current assets such as real estate, investments, checking accounts, etc. When a business owner has a spouse, it makes it easier to plan around past judgments and liens. The obvious question that must be answered and asked is whether bankruptcy or Chapter 7 bankruptcy is an appropriate decision. In many circumstances, Chapter 7 bankruptcy is a bad alternative because the creditors such as banks, financial institutions, and other creditors will undergo an adversarial court proceeding in the Chapter 7 bankruptcy. The purpose of an adversarial court proceeding is to challenge the small business owner's bankruptcy proceeding and save their client money. Thus, even if Chapter 7 is a good alternative in many cases, a Chapter 7 is a bad alternative because the business is an expenditure of money that many entrepreneurs and small business owners cannot afford at this point in time. Another goal of the asset protection attorney is to identify an appropriate business entity to operate in for future purposes. This is important because certain business entities may face a charging order by a court. A charging order is simply a court order which gives control of the company to the creditor. Thus, the creditor will controll all distributions and voting rights. In contrasts, a properly formerly Family Limited Liability Corporation prevents a charging order and limits the rights of creditors. For an experienced business owner this is important because it enables them to regain their economic strength and pay off their debts when they have the financial strength. In many cases, this will involve paying less than what is owed on these creditor debits. In conclusion, Sean Robertson is an asset protection and wealth preservation attorney based in North Aurora and Downtown Chicago, Illinois. Robertson Law Group, LLC is a wealth management and asset protection law firm specializing in distressed business planning and litigation, commercial litigation, and asset protection. Sean Robertson may be reached either at 630-800-2033 or 312-854-7102. The firm's website is www.RobertsonLawGroup.com. Keywords: Family LLC Attorney Chicago, Family LLC Downtown Chicago, Family LLC Lawyer Western Suburbs, Family LLC Naperville Attorney, Family Limited Liability Corporation Law Firm Aurora, Illinois, charging order Family Limited Liability Corporation, Physician Asset Protection, Entrepreneurial Asset Protection Chicago, Entrepreneurial Asset Protection Attorney, Asset Preservation Attorney Naperville Illinois, Asset Protection Law Firm Aurora, Wealth Management Law Firm North Aurora, Wealth Management Law Firm Chicago

Typical Asset Protection Meeting with an Attorney

Tomorrow morning, we have another meeting with a prospect regarding an asset protection for a business owner that has a lot of prior judgments from a failed business venture. In today's economy, many experienced business owners have experienced significant failure resulting in lawsuits, judgments, and liability risks. Part of the conversation tomorrow is how to structure future business enterprises to deal with the judgments and liability risks that exist in the past. First, we must be careful because under Illinois law, an attorney must not assist an entreprenuer or small business owner commit a fraud. Generally, future planning that involves future assets is different than planning with current assets such as real estate, investments, checking accounts, etc. When a business owner has a spouse, it makes it easier to plan around past judgments and liens. The obvious question that must be answered and asked is whether bankruptcy or Chapter 7 bankruptcy is an appropriate decision. In many circumstances, Chapter 7 bankruptcy is a bad alternative because the creditors such as banks, financial institutions, and other creditors will undergo an adversarial court proceeding in the Chapter 7 bankruptcy. The purpose of an adversarial court proceeding is to challenge the small business owner's bankruptcy proceeding and save their client money. Thus, even if Chapter 7 is a good alternative in many cases, a Chapter 7 is a bad alternative because the business is an expenditure of money that many entrepreneurs and small business owners cannot afford at this point in time. Another goal of the asset protection attorney is to identify an appropriate business entity to operate in for future purposes. This is important because certain business entities may face a charging order by a court. A charging order is simply a court order which gives control of the company to the creditor. Thus, the creditor will controll all distributions and voting rights. In contrasts, a properly formerly Family Limited Liability Corporation prevents a charging order and limits the rights of creditors. For an experienced business owner this is important because it enables them to regain their economic strength and pay off their debts when they have the financial strength. In many cases, this will involve paying less than what is owed on these creditor debits. In conclusion, Sean Robertson is an asset protection and wealth preservation attorney based in North Aurora and Downtown Chicago, Illinois. Robertson Law Group, LLC is a wealth management and asset protection law firm specializing in distressed business planning and litigation, commercial litigation, and asset protection. Sean Robertson may be reached either at 630-800-2033 or 312-854-7102. The firm's website is www.RobertsonLawGroup.com. Keywords: Family LLC Attorney Chicago, Family LLC Downtown Chicago, Family LLC Lawyer Western Suburbs, Family LLC Naperville Attorney, Family Limited Liability Corporation Law Firm Aurora, Illinois, charging order Family Limited Liability Corporation, Physician Asset Protection, Entrepreneurial Asset Protection Chicago, Entrepreneurial Asset Protection Attorney, Asset Preservation Attorney Naperville Illinois, Asset Protection Law Firm Aurora, Wealth Management Law Firm North Aurora, Wealth Management Law Firm Chicago

Physicians and Non-Compete Agreements in Illinois

PHYSICIANS AND ENFORCEABILITY OF NON-COMPETE AGREEMENTS Physicians should think twice before signing a non-compete agreement Just recently in December of 2011, the Illinois Supreme Court broadened the enforceability of non-compete agreements. Prior to the ruling, courts have struggled with the enforceability of non-compete agreements which left both employers and employees weary in these tough economic times. Back in 2009, the 4th District Court of Appeals steered away from a long line of cases requiring that non-compete agreements must protect a legitimate business interest. The Appellate court held that for a non-compete agreement to be enforceable, all that employers had to show was that the non-compete agreement be reasonable in its duration and geographic restrictions. After the 4th District Court of Appeals ruling, it seemed that employers had the upper hand but the legal uncertainty as to whether a non-compete agreement must protect a legitimate business interest left judges struggling to reconcile long established precedent with the new decision. The struggle came to an end when the Illinois Supreme Court came down with its decision holding that there must be a protectable business interest in order for a non-compete agreement to be enforceable, but did it really clarify what types of non-compete agreements are or not enforceable? The Illinois Supreme Court went on further to state that whether a non-compete agreement protected a legitimate business interest should be decided on a totality of the circumstances test. So what does this mean? It means that until future cases establish what types of business interests are protectable, employers, employees and judges will continue to struggle with whether a certain non-compete agreement will be enforceable. Will a business’ reputation or goodwill be a protectable interest? Until such decisions are made by the courts, employees should be especially weary on signing such agreements, especially professionals such as physicians. In the context of non-compete agreements, in some cases physicians are treated the same as any other employee on the issue of enforceability. Although the appellate courts have been split on the enforceability of non-compete agreements against physicians, the Illinois Supreme Court has held that they are in fact enforceable against medical professionals. In Mohanty v. St. John Heart Clinic, S.C., the plaintiff-physicians sought a declaratory judgment that the non-compete agreement at issue, which restricted the “practice of medicine”, was void based on public policy grounds. The Supreme Court rejected other appellate court rulings which held that such non-compete agreements against physicians violated public policy. The plaintiffs’ also argued that the activity restriction, the “practice of medicine”, was broader than necessary to protect the defendants’ interests, which was cardiology. The court upheld the non-compete agreement holding that the activity restriction was not broader than necessary since the geographic restriction was within a narrowly circumscribed area of a large metropolitan area. Physicians contemplating on whether to sign a non-compete agreement should be cautious before entering into such an agreement not only because of the uncertainty of enforceability but also because of the costs of litigating such an issue. Physicians who are uncertain as to whether signing a non-compete agreement is in their best interest should have an attorney review the agreement to protect themselves from the possibility of costly litigation in the future. Andrew McCann is an Associate for the Robertson Law Group, LLC in the North Aurora, Illinois location in the Western Suburbs of Chicago, Illinois. Andrew McCann concentrates in family law, asset protection, and business law for Physicians, Dentists, and Healthcare Providers. Andrew McCann may be reached at 630-800-2033 or Andy@RobertsonLawGroup.com. Robertson Law Group, LLC has offices in North Aurora and Downtown Chicago, Illinois. The downtown Chicago Office may be reached at 312-85-7102. Our website is www.RobertsonLawGroup.com.

Gov. Quinn Signs New Citation to Discover Asset's Law

On July 25, 2012, Governor Pat Quinn signed a new law dealing with Citations to Discover Asset's Proceedings, which effect debtors or Defendants. A Citation to Discover Asset's Proceeding is a post-judgment proceeding after a Debtor or Defendant has obtained a judgment. There are a couple of major provisions, which apply to this new law. Our law firm will write a more thorough review of this new law within the next 7 days. The old law allowed a Judge to find a Debtor or Defendant in contempt of court after they failed to show up for court for a "Rule to Show Cause". A Rule to Show Cause is a court proceeding in Illinois where a Debtor or Defendant must show up to court and submit the appropriate documents and/or appear personally at the court proceeding. Generally, the old law would hold a Defendant in contempt of court if they failed to appear in court for the "Rule to Show Cause" court proceeding. The court also would find the Debtor or Defendant in Contempt of Court and set the bond amount according to the Defendant's judgment amount with the creditor. This made sure the creditor got paid because a Defendant could not get out of jail and contempt of court until their judgment was paid off. The new law restricts the bond amount for violation of contempt of court to be limited to $1,000. Furthermore, this bond payment does not necessarily go to the creditor to satisfy their judgment. The new law also requires a creditor to personally serve a creditor through personal service. Personal service means that a creditor must hire a sheriff or process server to serve the Defendant or Debtor. Thus, we recently had a case where the service of process was through an email account. Under the new law, this service of process would no longer be sufficient. Robertson Law Group, LLC is a business boutique law firm concentrating in asset protection, Citations to Discover Assets, and civil and business litigation in the counties of Cook, Dupage, Will, Kane, and Kendall County. We are comprised of five (5) different attorneys with various areas of expertise. Robertson Law Group, LLC may be reached at 312-854-7102 or 630-800-2033 (Western Suburbs-North Aurora and Naperville). Our website is www.RobertsonLawGroup.com. Keywords: Public Act 97-0848; Governor Pat Quinn Citation to Discover, "Income and Asset Form" Citation to Discover Assets, Cook County new law Citation to Discover Assets, Dupage County new law Citation to Discover Assets, Rule to Show Cause Citation to Discover Assets, Cook County Rule to Show Cause, Dupage County Rule to Show Cause, Will County Rule to Show Cause, Kane County Rule to Show Cause, Kane County Citation to Discover, Robertson Law Group, LLC Asset Protection, Citation to Discover Assets Lawyers, Citation to Discover Assets Law Firm, Citation to Discover Assets Attorney, Citation to Discover Assets Daley Center

Post-Judgment Proceedings & Asset Protection

Post-Judgment Proceedings: Preparation is Key Common mistakes in preparing an asset protection plan The Citation to Discover Assets proceeding –the last place an indivdual wants to end up. The lawsuit has been lost, liability has been determined, and you have ended up at the mercy of a judgment creditor. Experience has allowed me to group post-judgment defendants into two groups: those who have prepared for the worst and those who have not. You can spot the unprepared a mile away. They are the ones pacing up and down the hallways of the Daley Center, a sheen of presperation across their forehead with the tell-tale dark circles under the eyes. The Citation process for these individuals is painful. The creditor’s attorney will grill them about every single asset, bank account, credit card and source of income they have ever come across. At this point, bank accounts in their name have probably already been frozen, making it difficult for them to even hire an attorney to protect whatever little interests they may have. A word of wisdom – be prepared. The following are common mistakes that many people, especially entrepreneurs, make when trying to protect their assets. 1. Too little too late. Failing to plan prior to problems arising is the most frequent mistake people make when it comes to protecting their assets. Once a lawsuit has been filed, even before any liabilty has been determined, any transfers of assets from one entity to another can be scrutinized. For example, if during the course of a lawsuit against an individual that individual transfers his home from his personal name into an irrevocable trust or family limited partnership the court can rule this type of transfer to be a fraudulent conveyance. If a transfer is deemed to be a fraudulent conveyance, the transfer will be void and placed back in the original position and used to fulfill the creditor’s judgment. It is extremely important to initiate your asset protection plan early – long before potential creditor issues arise. 2. Using a one size fits all approach. An asset protection plan should be tailored to you and your business’s specific needs. A plan that worked for your neighbor may not be the right plan for you. Many people use the wrong entity structures – you should find one that fits your specific needs to gain the maximum protection from potential creditors while simultaneously giving you the best tax advantages. There are a variety of options out there – the limited liability company, irrevocable trust, private land trust, s-corporation, living trust, tenancy by the entirety and many more. All with unique characteristics appropriate for specific purposes. Find an attorney that will take the time to discuss your specific needs and find the right plan for you. 3. Failing to properly title and transfer assets. An asset protection structure cannot be effective if you do not title or transfer your assets into the structures you have created. Furthermore, in slightly more complex cases, multiple structures are established and some categories of assets should be placed in one entity while others are placed in a separate entity. Be sure to place your assets into the proper entity and title them correctly. 4. Not respecting the formalities of an entity. A good asset protection plan does little good if the formalities of the specific entities used are not recognized and followed. A judgment creditor will always check to determine whether your limited liability company or family limited partnership is run like a legitimate entity or if the entity – as it has been treated –is a sham. This means that all the work done to create this entity and place certain assets into it was essentially worthless and the protection it was supposed to provide is void. Be aware of the formalities that your entity structure requires. Ensure that they are followed to allow for maximum protection. Plan ahead, find someone who will tailor a plan to your specific needs, be informed about the rules and formalties of the structure you use and ensure that assets are positioned correctly. These small steps are what will distinguish the prepared from the unprepared. The prepared individual will walk into the post-judgment proceeding with confidence that some of their major assets – such as their home and personal bank accounts – will never be touched by the judgment creditor. This article was written by Abby Gartner, Esq., an Associate Attorney for Robertson Law Group, LLC. Abby Gartner may be reached at 312-854-7102 or Abby@RobertsonLawGroup.com. Abby Gartner concentrates her practice in commercial litigation and distressed business planning, corporate law, and asset protection law including Citations to Discover Asset's Proceedings. Robertson Law Group, LLC handles a lot of Citations to Discover Asset's Proceedings due to our expertise in asset protection and liability planning law in downtown Chicago, Illinois. Keywords: Citation to Discover Assets Chicago Attorney, Daley Center Citation to Discover Assets, lawyer Daley Center Citation to Discovery Assets, Abby Gartner Attorney Chicago, Asset Protection Lawyer Cook County, Asset Protection Lawyer Chicago, Circuit Court of Cook County Citation to Discover Assets

Should a Physician Sign a Non-Compete Agreement?

The purpose of this blog article today is "Whether a Physician Should Sign a Non-Compete Agreement?" The practical answer is yes, but a physician or doctor should understand what is a non-compete agreement and what legal rights are you given up. Generally, in Illinois, a non-compete agreement is an enforceable agreement if it is written without too broad of geographic scope and the time limitation is reasonable. In my experience, I see Physician Employment Contracts or otherwise known as Doctor Employment Contracts, written with a year or two time restriction. Normally, a time restriction under two (2) years will be viewed as reasonable in Illinois courts. My practice involves the Chicagoland Region such as Dupage County, Will County, Cook County, Kane County, and Kendall County and I have noticed that a lot of time restrictions are one (1) year. I believe that two (2) years may be okay, but too be safe, a year is much more practical. However, a well-written Physician Employment Agreement will have a provision that modifies the Employment Agreement if a court finds that the time restriction is too broad. Thus, the modification provision will allow the Circuit Court of Cook County, Circuit Court of Dupage County, Circuit Court of Will County, or other court house to limit the time scope to what the court finds as reasonable. The geographic limit restriction is often around 15 miles or 30 miles. In many cases, this protects the healthcare owner or physician whose practice wants to protect their client relationships. Unlike attorney practices, it is acceptable for a Physician to have a non-compete agreement. The benfit of a non-compete agreement for a physician practice group or physician is the ability to protect your clients or your property interests in your clients from a physician or independent contractor that wants to compete against you and steal your clients. Generally, a Physician or Doctor will be an employee or independent contractor for another physician or physician practice group or hospital. If you are an employee that is looking for an attorney, Robertson Law Group, LLC can assist you negotiate or revise the employment or independent contractor agreement. Often times, the purpose of a non-compete agreement is to protect your employer from you stealing their clients. This is completely reasonable and you will be forced to sign this agreement. However, these agreements are often times drafted in a manner to protect your employer. You should have your own legal counsel to negotiate and/or review your employment agreement. This generally involves three (3) to five (5) hours worth of attorney-time (in most cases). In conclusion, many physician practice groups or solo physicians will require an employee or independent contractor to sign a non-compete agreement. A non-compete agreement is a legal agreement that prevents a Physician or Doctor from opening up their own medical practice within a certain time frame and within a certain geographic limitation of their employeer's medical practice. Sean Robertson is an Asset Protection Attorney that concentrates in medical practice planning and healthcare planning. We understand how to draft employment and independent contractor agreements and how to properly structure your medical practices and your personal assets in a manner that protects your business and personal assets. Sean Robertson may be reached at either 312-854-7102 (Downtown Chicago) or 630-800-2033 (Western Suburbs-North Aurora and Naperville). Our website is www.RobertsonLawGroup.com. We have multiple attorneys that service physicians, surgeons, and emergency room doctors. Keywords: physician asset protection planning, Chicago asset protection attorney, Dupage County asset protection Medical, Physician Employment Agreements Dupage County, Physician Employment Agreements Chicago, Physician Employment Agreements Will County, Physician Employment Agreements Kane County, Physician Employment Agreements Naperville, Illinois, Physician Employment Agreements North Aurora, Illinois, Aurora Physician Employment Agreements Attorney, Independent Contractor Agreement Doctor, Doctor Independent Contractor Agreements, doctor asset protection lawyer, Sean Robertson Physician Attorney Illinois, Sean Robertson Physician Attorney Chicago, Sean Robertson Physician Attorney North Aurora, Sean Robertson Physician Lawyer Naperville

Why a Husband and Wife Should Never Own the Same Business?

The purpose of this blog today is "Why A Husband and Wife Should Never Own the Same Company? There is a simple reason a two (2) spouses should not own the same business. The first reason is a simple asset protection reason. If the business such as an LLC or S corporation gets into trouble, generally, the owners of that business will be sued in their personal capacity plus in their business capacity. For example, Sue and Bob are wife and husband and they own a web site business together called "ABC, LLC", which is owned 50 percent by the wife and 50 percent by the husband. In my experience, a Plaintiff's attorney will sue the business, the wife, and the husband individually as well as "ABC, LLC". In this example, the wife and husband have a problem because they both are brought into this legal proceeding. Generally, in Illinois, a husband and/or wife generally are not liable for each other's debts. This is not the case in community property states such as Wisconsin or California. In my experience in Cook County, Dupage County, Kane County, Kendall County, or Will County, a creditor or Plaintiff's attorney will name the individual shareholders as co-Defendants in the proceeding. Why? The reason is because the creditor or Plaintiff's attorney understands that the business, LLC or S corporation often times does not have the assets. Individuals have assets such as certificate of deposits, checking accounts, saving accounts, and other assets. What happened to no personal liability for a business debt? Yes, this is the general rule but real life court is about obtaining a judgment for your Plaintiff client and filing a lawsuit against the business only often times will result in a loss of money and payment of attorney's fees. Thus, it is a good idea for a business to never have both a husband and wife jointly own that business. If a husband or wife go through a divorce, it is generally viewed as both husband and wife own fifty (50) percent of each other's assets. By Illinois law, a husband or wife for divorce purposes, what be a joint owner of the business (not creditor or debtor law). Thus, if one spouse is avoided the pain and agony of this court proceeding, it gives the husband and wife the ability to protect their bank accounts from judgment proceedings. Furthermore, one spouse generally wants to maintain the good credit while the other spouse may have bad credit. It is a good idea to maintain at least one spouse's good credit especially for business and practical purposes. In many cases, a business will be sued for consumer and business fraud or in a partnership or business dispute, a Plaintiff's attorney will argue that an individual is liable for their actions. Thus, it is not a good idea for a husband and wife to jointly own a business. It is bad for asset protection purposes and more importantly, it will help you and your spouse avoid the pain of experiencing the "American Nightmare". The "American Nightmare" is happening to many small to medium sized business owners right now in Cook County, Dupage County, Will County, Kane County, and Kendall County, which is the target of this blog. The American nightmare is when a small business failure occurs and you have lawsuits and/or creditor proceedings such as a Citation to Discover Asset's Proceeding. In simple terms, the American nightmare is a situation where you and your family are having a difficult time keeping your head above water and feeding your family or providing basic necessities. Sean Robertson is an asset protection and commercial litigation attorney. Sean Robertson is Managing Partner of Robertson Law Group, LLC, which is based in downtown Chicago, North Aurora, and Naperville, Illinois. Robertson Law Group, LLC concentrates in helping small to medium sized entrepreneurs and business owners facing economic and financial distress. Robertson Law Group, LLC counsels and advises business owners and family-owned businesses on how to properly structure their business and personal assets in a manner that reduces or eliminates the liability risks associated with entrepreneurship or small business ownership. Robertson Law Group, LLC may be reached at either 312-854-7102 (Downtown Chicago) or 630-800-2033 (Western Suburbs). Our website is www.RobertsonLawGroup.com. 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