"Professional" musician?

Mike Winter · Post by **Mike Winter** » 26 Jul 2009 7:29 pm

I have a question. I am currently unemployed and going through a less than amicable divorce, and I don't trust my wife and her lawyer...I want to avoid them bending me over and taking all or part of my stuff.

If I were to file Chapter 7 bankruptcy, my musical gear would be "protected/exempt" if I was considered a "professional" musician. Do any of you know what that actually means? I've checked on the internet and am still unclear. Does it mean:

1. I get paid when I play, therefore I am...

2. I make my living by playing, therefore I am...

Any thoughts and/or opinions are appreciated.

Jim Cohen · Post by **Jim Cohen** » 26 Jul 2009 7:35 pm

Mike, I hope you're not saying that, going through this divorce, your wife is the only one with a lawyer!

Michael Douchette · Post by **Michael Douchette** » 26 Jul 2009 7:51 pm

If your primary financial support is your music, you are a musician.

If your primary financial support is your wife's job, you are a professional musician.

Jody Sanders · Post by **Jody Sanders** » 26 Jul 2009 8:22 pm

Mike, you need to have your own attorney. I am sure glad I did when I was in similar circumstances. You are in a war, and you don't fraternize with the enemy. Good luck. Jody.

Eric West · Post by **Eric West** » 26 Jul 2009 8:40 pm

I'm thinking that it's kind of hard to attach things that are unregistered. They could or can always "belong to someone else". Cars, firearms, and other things if they are being financed are more susceptable to being "attached" than a collection of musical instruments unless they're listed in some thing like an insurance policy..

Best of luck.

Call Pete, like I think I said earlier in the year. He wont' work for free, but he'll finance about any amount.

Best wishes mike. Lots of hard things happening to quite a few of us.

EJL

pdl20 · Post by **pdl20** » 26 Jul 2009 8:52 pm

It may sound good to say that but a little advice.i was a professional musician. i went thru a divorce as such and we had 2 children,she didn't want any child support,the lawyers said she had to set a minimum amt or the court would and it would be half of what i would earn each month,so she set it lowest amt.its beacuse pro musicians don't always earn a steady living or work steady.or have slim to none health insurence and can't draw unemployment(get the Picture)so i wouldnt even go there,sell it to a trusted friend.

.im not a lawyer so go talk to one ,you will need help on this.good luck.i hope you can work it out,these things arent fun to go through,nobody wins.

Tony Prior · Post by **Tony Prior** » 27 Jul 2009 1:20 am

As crazy as this sounds, Divorce courts really do not take "items away". It's about cash and support going forward. It's about splitting common property. Home, Cars, bank accounts etc....

If you are really afraid of having your stuff "taken", move it to a location where it is out of harms way.

No Judge is going to order that you sell or give your Musical Instruments to an ex wife. Start making a list of her things that you want or want sold.

Been there done this and she had a weasel atty. They may ask for the value of the Instruments and somehow work that into the total divide, it may be possible that a weasel atty requests 50% trade for something else.

A Court will not take your Instruments and make you sell them, this is a divorce, not a criminal or Civil suit. It's division of common property.

Negotiate, get an atty.Just flat out say NO when it comes to your personal items. Make them go in front of a Judge which they will not do. Divorce settlements of property are not done in front of a Judge in open court, the terms of Divorces are approved by a Judge in open court . Trade your half of all the furniture for the value of your Instruments, see how it works.If she decides to sell the furniture she can keep all the money, her choice,stuff like that. Exaggerate the value of the furniture, tell them she is getting the better deal. The issue here is that a weasel atty wants the furniture and the value of the Instruments, they know how to play the game, which is exactly what this is. Math, divide by two where her atty tries to get her the bigger half. Just say no.

It's Divorce, not a Civil Suit.

You have more power than you think, negotiate but do get an atty if for nothing else , advice.

Bill Hatcher · Post by **Bill Hatcher** » 27 Jul 2009 4:21 am

if she has a lawyer and is paying his bill, go have a meeting with them and see first what kind of deal she is offering. If she wants out then you might be able to negotiate something that you can deal with. Your "stuff" that you are talking about....what is it? Are you talking about your instruments/gear you use to make a living or are you talking about a bass boat/real estate/cars/furniture/shotguns/guy stuff etc. The common property...you are going to have to negotiate that kind of stuff. Money...you will have to negotiate that. If she has a good steady job and at any point you supported her while she trained for that job, YOU might be entitled to some money. Kids involved?.....that will have to be negotiated.

See what kind of deal they are offering IN WRITING and then see if you need to go to the expense of a lawyer.

In regards to your PRO musician status, you can look at your IRS records and see how much of your income has come from your music. That percentage will determine what your status is. If you made money from music and the IRS determines that it is NOT a "hobby" then you are a pro musician. You can be two or more things at once. IF you make money as a plumber and have a dedicated vehicle with your plumbing stuff in it and have a license and such and you also play on weekends and have musical expenses ie. your gear and stage clothes and such then both are considered your job.

If you have a bunch of musical gear and you don't make much money from it then the IRS considers it more of a hobby and you cannot take any business deductions.

If you have 1099 or W2 income from your gigs and you fill out the profit and loss section and self employment form on your taxes in regards to your music then legally you are a working pro musician.

Jim Cohen · Post by **Jim Cohen** » 27 Jul 2009 5:08 am

Bill's comments sound very valid, but I would caution against his first bit of advice, which is to go alone to a meeting with her and her attorney. Perhaps I'm just overly cautious but I think that's a very dangerous thing to do; you could be tripped up into saying something you'll later regret, or revealing something by your reactions or non-reactions. Be aware that they will be strategizing against you during that meeting and you will be going in unprepared for battle. Get a lawyer.

Bill Hatcher · Post by **Bill Hatcher** » 27 Jul 2009 5:20 am

I see your point Jim, but I still see nothing wrong with going to the meeting, sitting there and keeping your mouth shut and finding out what they are going to offer. They have already made up their mind as to how they want it to go. If he does not like the deal then he can go to an attorney. At least he will know what he is up against. He already says the divorce is not "amicable", so it is pretty clear that the meeting will be lop sided.

If he can live with the deal they offer then he has no attorney fees and can get on with the divorce.

I still say go and just see what he is up against.

Donny Hinson · Post by **Donny Hinson** » 27 Jul 2009 5:27 am

Generally, anything acquired during the course of a normal (long-term) marriage is "community property", meaning both have claim to such, and the one that desires to keep said property must reinburse their spouse for half of the value of it.

Of course, everything is subject to litigation, and the problems are compounded when children are involved, or when only one spouse had income.

You definitely need a lawyer if the divorce isn't amicable. Any agreements made can affect your income for the rest of your life.

Dennis Coelho · Post by **Dennis Coelho** » 27 Jul 2009 5:34 am

Get a lawyer, a good lawyer, and don't agree to anything before the lawyer has had a chance to review it, no matter how simple or unthreatening it seems. Proposals and agreements written in a legal vocabulary can have long, long term financial implications, especially if there are children involved. Nobody going through a divorce on either side is thinking straight or has control of their emotions. Been there.

Dennis

Lee Baucum · Post by **Lee Baucum** » 27 Jul 2009 5:37 am

Mike - Are you even in a "community property" state?

Whether you answer that question yes or no, I think you should get representation.

Jim Cohen · Post by **Jim Cohen** » 27 Jul 2009 5:43 am

But, Bill, since you strongly advise that he get their offer IN WRITING, why not forego the in-person meeting (which, I believe only carries risks for Mike), and just ask them to send him their offer in writing? Then he can have the benefits you envision without the risks I envision.

p.s. Get a lawyer.

Jeff Hyman · Post by **Jeff Hyman** » 27 Jul 2009 5:43 am

Bill,

For starters, the advise here is very solid, and I agree with most of what is being recommend. I assure you, you can, and will be asked some questions by your spouses attorney. Its at that moment where you want someone there in your corner. Anything you say, can and will be used against you. Find a lawyer and buy an hour or two of his/her time to go to this meeting.

I am not a lawyer. I'd take a wild guess that proof that anything to do with your PSG income will be decided by what shows up on previous and current Federal Tax Returns. If you did make income from playing, and its not on a return... its just another weapon her lawyer may use to cut you up into little tiny E9/C6 slices.

Bill Hatcher · Post by **Bill Hatcher** » 27 Jul 2009 6:05 am

Let me tell you my first hand experience.

Split up with my first wife many many years ago. I told her to go to an attorney (out of state in her home town) and get him to draw up the papers and let me know what she wanted and that I would pay the attorney fee. She agreed to not mess with my musical stuff and I would give her what ever she wanted in regards to the sofas and knives and forks and such. At 12AM midnight on the legal day, we were out of the situation and it cost me about $300 and it was the best $300 I ever spent in my life. I never had to hire an attorney, just to pay hers, just agreed to what they offered, which was VERY reasonable to me since I had to give up none of my musical gear or my car.

Sofas and knives and forks are easy to replace by the way! Wasted time in a turned-sour relationship is not.

You guys make some great points. I will concede to taking an attorney with him if he can afford to, but if he cannot, then I say go to the meeting, tell the attorney that he cannot answer questions without being represented, and that he will look at their proposal and take it with him to decide whether or not he needs to hire an attorney or if he can work with them using hers.

Larry Bressington · Post by **Larry Bressington** » 27 Jul 2009 6:10 am

Mike, Doe's she really want the steel guitar and equipment?? If she does,[she needs to go for sure] i would definatley be 'giving it' away to a freind, who will give it back to you at a later date.
You could then borrow it from a freind for gigs, know what i mean.
Good luck brother, and do what it takes to keep that stuff, cant have it if you dont own it.

If there are no children or mortgage involved, you could just grab your geeetar and BE GONE!
She can get the divorce done by herself over time, providing you no longer want to re-marry, DO NOT offer a damned thing for exspences, let her do it all, if all the above applies to you, 'Hit the road'.

AS far as i know, the word 'PROFESSIONAL' in legal terms , means that you get 'paid' for your playing services, so if you do paid gigs in a band, you are a PRO.

Rick Barnhart · Post by **Rick Barnhart** » 27 Jul 2009 6:16 am

I am currently unemployed and going through a less than amicable divorce, and I don't trust my wife and her lawyer...

The second half of Mike's opening sentence says it all... if you don't have competent representation, you may end up with some of those knives and forks in your back. Listen to Jim Cohen. Just my opinion.

Mike Winter · Post by **Mike Winter** » 27 Jul 2009 7:23 am

Thanks for all the great comments. I'm sorry, I didn't mean to imply that I didn't have an attorney; I do. I just figured I could get some free advice or knowledge from you guys...every time I email my lawyer it costs me. I went through the Oregon Bar for a reduced rate because I don't have a lot of money...you get what you pay for, that's for sure.

It's also complicated because she walked away from the house last October, a week after I got laid off. She's been in Phoenix with her new man since then, so she's not up here in Oregon at all. The house has gone into foreclosure, the truck will be repossessed. (Contingency plans are in place, though.) I'm getting a bankruptcy attorney as well...more money... and so it goes.

Gotta be some songs in all this.

Thanks again.

Joachim Kettner · Post by **Joachim Kettner** » 27 Jul 2009 7:41 am

Mike, I don't know if this is the right time to say it,
but I think your band is great!!!

Jim Cohen · Post by **Jim Cohen** » 27 Jul 2009 8:04 am

Mike Winter wrote:Gotta be some songs in all this.

Well don't mention that to her lawyer either!

chris ivey · Post by **chris ivey** » 27 Jul 2009 9:31 am

i've given all my gear to my gal partner. i borrow it everyday.

i learned this from g. gordon liddy, who's guns are all in his wife's name.

Ray Montee (RIP) · Post by **Ray Montee (RIP)** » 27 Jul 2009 9:34 am

Typically, in Oregon, the first one to the attorney has a strong lead in winning their 'wants'. They are the moving party.

A "negotiator' will sell your butt down the toilet. They're weak, lack any real competitive drive, and will settle for ANYTHING........except giving up or reducing their fees.

What you NEED, is a scrapper that actually cares about you. A woman attorney, DIVORCE LAWYER, would be highly recommended. NEVER get a probate or corporate or tax lawyer to represent you in a divorce case.

The wife can be broke and they can still get top qualify legal representation.........as the standard line is: "Don't worry about attorney fees, we'll get that out of your husband!"

The husband typically has to come up with at least
$5,000 with a like amount in reserve for the attorney's anticipated unforeseen costs/expenses.

Don't you have to sell your music stuff in order to survive? It's only logical that you'd have to. A guy's got to eat. And if it's gone, it's gone, what's to settle. And DON'T GET A NEW GIRLFRIEND!!!!! THAT alone will kill your case.

DIVORCE cases are not about FAIRNESS! They do not deal with equal rights for males. REMEMBER, from here on out, NO ONE is YOUR FRIEND!!!
I'm sorry to hear about your plight. Be careful on all the free legal advice from well-meaining steel players. The corner bar-tender might have a better handle on the pro's and con's of your case.

My 47 years as a legal investigator gives me a reliable understanding how it works in Oregon......not to mention my first divorce; or 2nd, or 3rd, or 4th, or 5th, or 6th. TRUST ME!

David Doggett · Post by **David Doggett** » 27 Jul 2009 10:40 am

I agree with Ray. Don't go to a meeting alone. Simply get a copy of their proposal in writing. You don't want to answer a single question without an attorney present. And whatever they say verbally that is not in writing will be hard for you to convey to your attorney the way he needs to hear it. You won't know the legal catch phrases your attorney needs to hear. So there is no point in going to a meeting alone.

It is possible to do most of the negotiating by exchanging written documents between the attorneys (not between you or your ex). Most attorneys charge extra to go to a meeting, and even more to appear in court. But it may be possible to get the whole thing done as cheaply as possible by simply exchanging documents between the attorneys. Then after it is all completely settled and in writing, you can go to court alone to have the written proposal entered by the judge. But if even a single little item is brought up for a change in court, ask for a continuation and take it back to your lawyer. That may kill her desire to try to take advantage of such last minute changes, because she will have to pay her attorney for another court appearance.

I would think it is obvious that transferring ownership of anything to a "new" girlfriend is very dangerous. What if things go sour with her at some point?! Also, even discussing transfers to her or other friends here on the Forum is discoverable, and can be used against you. The less said the better.

But the advice about the tradeoff between her stuff and yours is good. If you make her fight for everything she is taking, even stuff you don't care about, then she will have to trade that to let you keep your stuff you really want.

I have never heard of one party voluntarily paying for the other party's attorney. That's like paying somebody to beat you up. It also completely clouds the issue of who the attorney really represents. If there is a large income differential, a judge may order the higher income party to pay some or all of the attorney fees of the other party. But that is part of the final settlement. Doing it ahead of time voluntarily sounds like nonsense to me. Even if both parties are amicable and cooperative, attorneys can't be trusted. Therefore, each party needs their own attorney to fight the other attorney.

It's a war. And there are four parties: you, her, her lawyer, and your lawyer. All three of the other parties will be trying to rape you.

Good luck.

chris ivey · Post by **chris ivey** » 27 Jul 2009 10:48 am

and that's three times as much sex as you were getting before...

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