Interesting Family Law Issues
As a Boise Family Law Attorney I deal regularly with divorce, custody, paternity, modification, child support and domestic violence. Even though some of these issues can be complicated by conflict the concepts involved in these issues are fairly straight forward. However, every once in a while something will throw you a curve ball.
Paternity
As a Boise Divorce Attorney, I have handled divorce and modification cases that seem routine. Occasionally, however, some interesting issues arise. One such issue is Paternity. Now and then a new client will come into my office seeking a modification or responding to one. This isn't unusual. What is unusual is when the client has been paying child support and having visitation with a child that is legally not theirs.
Sometimes it is the case of mistake. Sometimes they presumed it was their child. Sometimes that is a mutual mistake for both parties. Sometimes the one party was convinced by fraud that the child is theirs. Other, more rare situations, are when the client knows the child is not theirs but they felt obligated to provide for the child anyway.
How to Fix Paternity Issues in Idaho
So what happens in these various situations? If the presumption is wrong, and the child is not biologically the child of one of the parties, and no fraud was committed, your Boise Divorce Attorney or family law attorney will petition the court to terminate any child support order. If you know the child is not yours but you want to have a relationship with that child and the child's biological parent is ok with it, you can ask that the existing order be kept in place or even modified (one caveat; not all judges will ok a stipulation for you to pay child support and have visitation with a child that is not yours even if both parties agree). If, however, you were fraudulently convinced that the child was yours and you have paid child support for that child, you can bring charges against the other parent, if they were the one that committed the fraud. They have to have known with a degree of likelihood that you were not the biological parent and taken child support from you anyway. If this is the case you can either seek reimbursement from the mother, who collected child support or the child's actual father who should have paid child support that whole time.
If you are public assistance and your child was born out of wedlock, the state will automatically require the father to have a paternity test to avoid the exact problems I outlined above.
If you need to speak to a Boise Divorce Attorney about divorce, custody, child support, modification, termination, adoption or domestic violence, give us a call to speak with one of our Boise Family Law Attorneys, (208) 472-2383 and see what we can do for you. Call now, you will be glad you did.
Friday, August 31, 2012
Friday, August 24, 2012
Boise DUI Attorneys - Criminal Defense Lawyers (208) 472-2383
Every year in Idaho well over 10,000 people are arrested on DUI charges. As a Boise DUI Attorney, I see a fair number of individuals who fit within this statistic. Some of these people flat out admit to driving while under the influence. Many will say, "I only had a few beers, there's now way I was drunk" and still others will say, "The cop had no reason to pull me over".
The Idaho Transportation Department offers some advice on DUI and DUI stops in Idaho. They say that there are some key activities that the Boise Police and all police in Idaho look for when determining if they have probable cause to pull someone over on suspicion of driving under the influence. In general they say that people who are driving drunk make wide turns, cross lines, weave or swerve, stop for no reason, drive too fast or too slow and/or have a delayed response to things like traffic signals. While I know a few really bad drivers who fit this profile stone cold sober, most people don't drive this way unless they are somehow impaired or distracted.
What happens if you are driving this way and you haven't been drinking? There are several possibilities that I see regularly as a Boise Criminal Defense Lawyer. Firstly, when you drive this way you give the police a reasonable suspicion that something is going on in your vehicle that shouldn't be happening and thus they can pull you over.
So what types of things do they find? A very frequent scenario I see in the role of criminal lawyer is driving under the influence of drugs. Now this may mean illegal drugs, over the counter drugs or prescription drugs. Obviously, if you have illegal drugs in your system you will be charged with a DUI and possibly possession and any other derivative of that based upon what evidence the police find. If you have over the counter drugs or prescription drugs in your system you may or may not be charged with DUI. These cases tend to turn on evidence provided by a physician. As a defendant what you need is for a doctor to say that the amount of that drug you had in your system would not have impaired you and that you should be able to drive with that amount in your system. If you can't show this you can be charged with a DUI.
Even if you can show that the amount of drugs in your system didn't effect your driving, you might still be charged with a crime. Reckless or inattentive driving is another situation I see regularly as a Boise Criminal Attorney. Those wide turns mentioned about might endanger children in a school zone or speeding through a neighborhood could constitute a reckless disregard for human life.
Another fairly new scenario is texting while driving. This isn't so much of an impairment, rather it is a distraction. If you are texting while driving you may only be cited for TWD. You, however, depending upon the level of your distraction and whether or not you cause harm, may also be charged with reckless or inattentive driving.
The long and short of it is that those signs the police look for to establish cause to pull you over on a DUI can also lead to other criminal charges, because, like I mentioned above, I know some really bad drivers, but...
If you need a Boise DUI Attorney or an Idaho Criminal Defense Lawyer, give us a call and see what we can do for you, (208) 472-2383. Call now - you will be glad you did.
The Idaho Transportation Department offers some advice on DUI and DUI stops in Idaho. They say that there are some key activities that the Boise Police and all police in Idaho look for when determining if they have probable cause to pull someone over on suspicion of driving under the influence. In general they say that people who are driving drunk make wide turns, cross lines, weave or swerve, stop for no reason, drive too fast or too slow and/or have a delayed response to things like traffic signals. While I know a few really bad drivers who fit this profile stone cold sober, most people don't drive this way unless they are somehow impaired or distracted.
What happens if you are driving this way and you haven't been drinking? There are several possibilities that I see regularly as a Boise Criminal Defense Lawyer. Firstly, when you drive this way you give the police a reasonable suspicion that something is going on in your vehicle that shouldn't be happening and thus they can pull you over.
So what types of things do they find? A very frequent scenario I see in the role of criminal lawyer is driving under the influence of drugs. Now this may mean illegal drugs, over the counter drugs or prescription drugs. Obviously, if you have illegal drugs in your system you will be charged with a DUI and possibly possession and any other derivative of that based upon what evidence the police find. If you have over the counter drugs or prescription drugs in your system you may or may not be charged with DUI. These cases tend to turn on evidence provided by a physician. As a defendant what you need is for a doctor to say that the amount of that drug you had in your system would not have impaired you and that you should be able to drive with that amount in your system. If you can't show this you can be charged with a DUI.
Even if you can show that the amount of drugs in your system didn't effect your driving, you might still be charged with a crime. Reckless or inattentive driving is another situation I see regularly as a Boise Criminal Attorney. Those wide turns mentioned about might endanger children in a school zone or speeding through a neighborhood could constitute a reckless disregard for human life.
Another fairly new scenario is texting while driving. This isn't so much of an impairment, rather it is a distraction. If you are texting while driving you may only be cited for TWD. You, however, depending upon the level of your distraction and whether or not you cause harm, may also be charged with reckless or inattentive driving.
The long and short of it is that those signs the police look for to establish cause to pull you over on a DUI can also lead to other criminal charges, because, like I mentioned above, I know some really bad drivers, but...
If you need a Boise DUI Attorney or an Idaho Criminal Defense Lawyer, give us a call and see what we can do for you, (208) 472-2383. Call now - you will be glad you did.
Friday, August 17, 2012
Boise Criminal Defense Attorneys - (208) 472-2383 Texting While Driving
As of July 1, 2012 it is illegal to text and drive in Idaho. This is a stand alone law meaning that the police can pull you over if they have reasonable suspicion that you are texting while driving. This is unlike the seat belt law in Idaho. In that situation, the police cannot stop you because you aren't wearing a seat belt, rather, if you are stopped for something else and you aren't wearing a seat belt, they can cite you for failure to wear a safety restraint.
This new law is sending a flood of calls to many Boise Criminal Attorneys offices. What does it mean and what are the ramifications of it? Firstly, driving while texting is an infraction. Basically, this means that you will get a ticket if you are operating a motor vehicle and you are reading or writing a text message. It, however, doesn't apply if you are using a speech activated device to create or read a text. To me, as a Boise Criminal Lawyer, this raises a curious question of proof. I personally have a hands free device in my car and with my phone I can speak and the phone will create the text or read me the text. This doesn't mean, however, that I regularly text this way. In fact, I usually use the old fashion method of clumsy thumbs. If a police officer doesn't see me texting, but sees me looking into my lap while I am driving, he or she may pull me over for texting while driving. Is me looking into my lap good enough evidence to prove I was texting while driving? What if the police officer looks at my phone and sees a text sent at 1:02 pm, the exact time he or she pulled me over? Can I tell the officer I sent that text with my hands free device? Will he or she believe me? In my mind, as a Boise Criminal Attorney, the problem with the law as it is is that it doesn't require an underlying infraction to be pulled over for. If it did and I was looking in my lap, then perhaps the police officer could pull me over for inattentive driving.
I think, without a doubt, it is a very good thing to have a law to keep people from texting and driving. It is dangerous and can lead to grave harm. However, as a Boise Criminal Attorney, I feel that the law is ambiguous and poorly written. It leaves open too many possibilities of bad evidence, loopholes and the like.
In addition, the law is not a moving violation. This means that if you are cited for texting while driving, a crime in Idaho, your insurance rates won't be effected by it. Part of the teeth behind the laws in criminal law is to dissuade people from committing crimes. If you sell marijuana or other drugs, you will go to jail. If you drink and drive you will get a DUI. If the legislature really wants to curb texting and driving, shouldn't it carry the threat of increasing your insurance? If you speed and get a ticket, you can be sure your rates will increase.
This is a new law and there are many unknowns yet to be discovered. Next blog I will talk about whether or not you need a search warrant to look at the texts or any other information on your smart phone.
If you have been charged with a crime and you need an experienced Boise Criminal Lawyer, give us a call and see what we can do, (208) 472-2383. We always offer a free consultation. Call us, you will be glad you did.
This new law is sending a flood of calls to many Boise Criminal Attorneys offices. What does it mean and what are the ramifications of it? Firstly, driving while texting is an infraction. Basically, this means that you will get a ticket if you are operating a motor vehicle and you are reading or writing a text message. It, however, doesn't apply if you are using a speech activated device to create or read a text. To me, as a Boise Criminal Lawyer, this raises a curious question of proof. I personally have a hands free device in my car and with my phone I can speak and the phone will create the text or read me the text. This doesn't mean, however, that I regularly text this way. In fact, I usually use the old fashion method of clumsy thumbs. If a police officer doesn't see me texting, but sees me looking into my lap while I am driving, he or she may pull me over for texting while driving. Is me looking into my lap good enough evidence to prove I was texting while driving? What if the police officer looks at my phone and sees a text sent at 1:02 pm, the exact time he or she pulled me over? Can I tell the officer I sent that text with my hands free device? Will he or she believe me? In my mind, as a Boise Criminal Attorney, the problem with the law as it is is that it doesn't require an underlying infraction to be pulled over for. If it did and I was looking in my lap, then perhaps the police officer could pull me over for inattentive driving.
I think, without a doubt, it is a very good thing to have a law to keep people from texting and driving. It is dangerous and can lead to grave harm. However, as a Boise Criminal Attorney, I feel that the law is ambiguous and poorly written. It leaves open too many possibilities of bad evidence, loopholes and the like.
In addition, the law is not a moving violation. This means that if you are cited for texting while driving, a crime in Idaho, your insurance rates won't be effected by it. Part of the teeth behind the laws in criminal law is to dissuade people from committing crimes. If you sell marijuana or other drugs, you will go to jail. If you drink and drive you will get a DUI. If the legislature really wants to curb texting and driving, shouldn't it carry the threat of increasing your insurance? If you speed and get a ticket, you can be sure your rates will increase.
This is a new law and there are many unknowns yet to be discovered. Next blog I will talk about whether or not you need a search warrant to look at the texts or any other information on your smart phone.
If you have been charged with a crime and you need an experienced Boise Criminal Lawyer, give us a call and see what we can do, (208) 472-2383. We always offer a free consultation. Call us, you will be glad you did.
Friday, August 10, 2012
Boise Probate Attorneys - Estate Planning (208) 472-2383
Probate and Minor Beneficiaries
As a Boise Probate Attorney I regularly assist clients in the probate of a loved one's estate. These probate issues often come to me after the fact, meaning that I did not draft the original will. One of the major issues I see has to do with providing for minor children under a will. No one hopes to die before their children come of age. The big problem comes in if you do die before your children reach the age of majority and you have failed to provide anything specific under the will for them.
While some individuals create very complex wills or living trusts to assist in their estate plan, many people rely on simple wills. In general, these wills leave everything to the spouse and if the spouse predeceases them, then to their children. This works fine, unless your children are under the age of 18. Who wants a $250,000 estate to go directly into the hands of a minor?
Estate Planning Solutions for Minor Beneficiarie:
Will Solutions
What, then, do you do? As an Estate Planning Attorney I would suggest a few different approaches. First, of course, you should try to deal with the issue before it becomes an issue. By this I mean, even if you only want a simple will, you should make a provision dealing with the distribution of property in case you die before your child reaches majority. The way to go about this is to insert a trust provision which handles who will distribute the property or funds to the child, when and in what amounts. This effectively allows you to prevent a very large sum of money ending up in the hands of a child. You can do this very simply by creating the trust and naming the trustee. You could also simply nominate a custodian for any beneficiary under the age of 21. In this situation, it is helpful to add a letter of direction, telling the custodian what you want them to do with your property and how to distribute or invest it for your minor children. This allows you to have control of how the property is distributed until your children reach the age of 21 instead of the age of 18. You can create further control over distribution if you follow the Idaho Uniform Custodial Trust Act (UCTA). This Code section technically allows a beneficiary to terminate a trust at the age of 18. However, if the will provision is created stating the share of any beneficiary under 30 is to be held in trust, you can bypass the beneficiaries ability to terminate it sooner.
Another solution is to create a living trust. In effect, a living trust takes your property out of your estate. You can establish revocable trust directing where your property will go and how it will be distributed. This approach also allows you to bypass probate if you place all your property in the living trust.
Probate Solutions
So what happens if you are on the opposite end of the situation and both parents of a minor child have died? If you have a small estate (under $10,000) the personal representative has the option of doing four different things. They may distribute the money directly to the child if the child is 18 or older or married. The PR may distribute the money or property to the person who has the care and custody of the child and with whom the child resides. The PR may direct the money to the guardian of the child. Or, lastly, the PR can place the money in an account in the minor's name.
If the estate is larger than $10,000 the Personal Representative has two courses of action. They can distribute the funds to a conservator or petition the court to transfer the moneys under the Idaho Uniform Transfer to Minors Act (UTMA). The difficulty relying on this code section for probate attorneys is that the act provides no guidance to the conservator, nor do they have any guidance from the deceased parents. There is no way they can hope to carry out the wishes of the parents. In addition, under the act, the money must be distributed when the child turns 18. In some situations, the court will hear a petition to extend that to age 21.
As a Boise Probate and Estate Planning Attorney, I feel that it is better to anticipate a potential problem by inserting a very specific plan into your will. It may never have to come into place, but if it does, your minor children can be provided for and you can prevent them from squandering their inheritance before they reach maturity.
If you have a probate or estate planning issue and you need to speak to an attorney, please give us a call, (208) 472-2383 and see what we can do for you.
As a Boise Probate Attorney I regularly assist clients in the probate of a loved one's estate. These probate issues often come to me after the fact, meaning that I did not draft the original will. One of the major issues I see has to do with providing for minor children under a will. No one hopes to die before their children come of age. The big problem comes in if you do die before your children reach the age of majority and you have failed to provide anything specific under the will for them.
While some individuals create very complex wills or living trusts to assist in their estate plan, many people rely on simple wills. In general, these wills leave everything to the spouse and if the spouse predeceases them, then to their children. This works fine, unless your children are under the age of 18. Who wants a $250,000 estate to go directly into the hands of a minor?
Estate Planning Solutions for Minor Beneficiarie:
Will Solutions
What, then, do you do? As an Estate Planning Attorney I would suggest a few different approaches. First, of course, you should try to deal with the issue before it becomes an issue. By this I mean, even if you only want a simple will, you should make a provision dealing with the distribution of property in case you die before your child reaches majority. The way to go about this is to insert a trust provision which handles who will distribute the property or funds to the child, when and in what amounts. This effectively allows you to prevent a very large sum of money ending up in the hands of a child. You can do this very simply by creating the trust and naming the trustee. You could also simply nominate a custodian for any beneficiary under the age of 21. In this situation, it is helpful to add a letter of direction, telling the custodian what you want them to do with your property and how to distribute or invest it for your minor children. This allows you to have control of how the property is distributed until your children reach the age of 21 instead of the age of 18. You can create further control over distribution if you follow the Idaho Uniform Custodial Trust Act (UCTA). This Code section technically allows a beneficiary to terminate a trust at the age of 18. However, if the will provision is created stating the share of any beneficiary under 30 is to be held in trust, you can bypass the beneficiaries ability to terminate it sooner.
Another solution is to create a living trust. In effect, a living trust takes your property out of your estate. You can establish revocable trust directing where your property will go and how it will be distributed. This approach also allows you to bypass probate if you place all your property in the living trust.
Probate Solutions
So what happens if you are on the opposite end of the situation and both parents of a minor child have died? If you have a small estate (under $10,000) the personal representative has the option of doing four different things. They may distribute the money directly to the child if the child is 18 or older or married. The PR may distribute the money or property to the person who has the care and custody of the child and with whom the child resides. The PR may direct the money to the guardian of the child. Or, lastly, the PR can place the money in an account in the minor's name.
If the estate is larger than $10,000 the Personal Representative has two courses of action. They can distribute the funds to a conservator or petition the court to transfer the moneys under the Idaho Uniform Transfer to Minors Act (UTMA). The difficulty relying on this code section for probate attorneys is that the act provides no guidance to the conservator, nor do they have any guidance from the deceased parents. There is no way they can hope to carry out the wishes of the parents. In addition, under the act, the money must be distributed when the child turns 18. In some situations, the court will hear a petition to extend that to age 21.
As a Boise Probate and Estate Planning Attorney, I feel that it is better to anticipate a potential problem by inserting a very specific plan into your will. It may never have to come into place, but if it does, your minor children can be provided for and you can prevent them from squandering their inheritance before they reach maturity.
If you have a probate or estate planning issue and you need to speak to an attorney, please give us a call, (208) 472-2383 and see what we can do for you.
Saturday, August 4, 2012
Boise Divorce Attorneys - Family Law Lawyers (208) 472-2383
Divorce and Separate Debt
As a Boise Divorce Attorney one of the issues I find to be the most frustrating and difficult for my clients to understand is the concept of reimbursement of separate debt by a member of the community. While this may sound like typical family law lawyer speak, it is a real issue that takes some analysis to understand.
Separate Funds vs. Community Funds
I have written on many occasions about the differences between separate and community property. Separate and community funds are a similar concept. Any funds, monies, that you have from before a marriage is your separate money. Likewise, income generated from separate property sources are generally separate funds, as is inheritance. Monies made during a marriage as a result of employment or business and through the sale of community property belongs to the community.
Funds Upon Divorce - Where Does Reimbursement Come From?
If one spouse had separate property at the beginning of marriage and did nothing to co-mingle the property or funds and they use the value of the property or separate funds to benefit the community, they are entitled to reimbursement. All family law judges and divorce attorneys can tell you that the community is required to reimburse the spouse who used their separate funds. Many divorce clients, however, often see this as an academic exercise. But, the reason it is important is because Idaho is a community property state and there is a real legal distinction between monies that belong to the community and monies that belong to each other by virtue of being separate property. The dollar amount owing to the party who used their separate funds is treated just like a debt to the community. Under Idaho law that person had the right to use their money for their own benefit and they are not required to use it for the community, but if they do, they have a right to reimbursement.
Community Right to Reimbursement for Separate Debt
The scenario works in the converse as well. When the community pays a separate debt for one of the parties, upon divorce, the community has a right to be reimbursed for its payment of that debt. This concept also can get convoluted for clients and it can seem to them that their divorce lawyers are speaking gibberish when talking about it. The important thing here to remember is that it may be difficult to trace payment for separate debt particularly if the marriage is of a long duration and the debt was paid years before. Most people don't contemplate divorce as a possibility until it becomes apparent that it will happen so there is the idea that it doesn't matter that the community paid for a separate debt. It is much like saving your receipt. You never think you are going to have to return something so you don't bother to keep track of it.
Proof of Payment
This leads me to my final thought on the issue of separate and community funds. As noted above, keeping track of funds can be critical to proving the right to reimbursement. Whenever you have co-mingling of funds or cross over payments, you run the risk of not being able to prove you are owed monies from the community. This is an important issue for divorce attorneys and clients alike. No Idaho Family Law judge will allow you to nickle and dime the other party because the presumption is that all funds and property in a marriage belong to the community. However, if you can clearly show that you paid a debt of the community from your separate funds or that the community paid for a debt belonging to the other party, you have a right to reimbursement.
A word of caveat. You have a right of reimbursement, but you still have to prove that you somehow did not co-mingle the funds or transmute the nature of the property. Sound like lawyer speak? Well, sounds like community property law to me.
If you are seeking a divorce and need an experienced divorce attorney, give us a call, (208) 472-2383 and see what we can do for you.
As a Boise Divorce Attorney one of the issues I find to be the most frustrating and difficult for my clients to understand is the concept of reimbursement of separate debt by a member of the community. While this may sound like typical family law lawyer speak, it is a real issue that takes some analysis to understand.
Separate Funds vs. Community Funds
I have written on many occasions about the differences between separate and community property. Separate and community funds are a similar concept. Any funds, monies, that you have from before a marriage is your separate money. Likewise, income generated from separate property sources are generally separate funds, as is inheritance. Monies made during a marriage as a result of employment or business and through the sale of community property belongs to the community.
Funds Upon Divorce - Where Does Reimbursement Come From?
If one spouse had separate property at the beginning of marriage and did nothing to co-mingle the property or funds and they use the value of the property or separate funds to benefit the community, they are entitled to reimbursement. All family law judges and divorce attorneys can tell you that the community is required to reimburse the spouse who used their separate funds. Many divorce clients, however, often see this as an academic exercise. But, the reason it is important is because Idaho is a community property state and there is a real legal distinction between monies that belong to the community and monies that belong to each other by virtue of being separate property. The dollar amount owing to the party who used their separate funds is treated just like a debt to the community. Under Idaho law that person had the right to use their money for their own benefit and they are not required to use it for the community, but if they do, they have a right to reimbursement.
Community Right to Reimbursement for Separate Debt
The scenario works in the converse as well. When the community pays a separate debt for one of the parties, upon divorce, the community has a right to be reimbursed for its payment of that debt. This concept also can get convoluted for clients and it can seem to them that their divorce lawyers are speaking gibberish when talking about it. The important thing here to remember is that it may be difficult to trace payment for separate debt particularly if the marriage is of a long duration and the debt was paid years before. Most people don't contemplate divorce as a possibility until it becomes apparent that it will happen so there is the idea that it doesn't matter that the community paid for a separate debt. It is much like saving your receipt. You never think you are going to have to return something so you don't bother to keep track of it.
Proof of Payment
This leads me to my final thought on the issue of separate and community funds. As noted above, keeping track of funds can be critical to proving the right to reimbursement. Whenever you have co-mingling of funds or cross over payments, you run the risk of not being able to prove you are owed monies from the community. This is an important issue for divorce attorneys and clients alike. No Idaho Family Law judge will allow you to nickle and dime the other party because the presumption is that all funds and property in a marriage belong to the community. However, if you can clearly show that you paid a debt of the community from your separate funds or that the community paid for a debt belonging to the other party, you have a right to reimbursement.
A word of caveat. You have a right of reimbursement, but you still have to prove that you somehow did not co-mingle the funds or transmute the nature of the property. Sound like lawyer speak? Well, sounds like community property law to me.
If you are seeking a divorce and need an experienced divorce attorney, give us a call, (208) 472-2383 and see what we can do for you.
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