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DUI Implied Consent Laws, Chemical Testing Alcohol Blow Test

DUI Implied Consent Laws and Chemical Testing

How breathalyzers are used by law enforcement to detect and prosecute DUI/DWI offenders.

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The first DUI laws prohibited driving while “under the influence” or “intoxicated” (DWI) by alcohol. So, convictions were based on the driver’s actual level of impairment. In other words, prosecutors were required in all cases to prove the driver was actually affected by the alcohol consumed. It’s still against the law to drive while impaired by alcohol. But now “per se” DUI laws also make it illegal to drive with a blood alcohol concentration (BAC) .08% or more.

Breath-test devices (also called “breathalyzers”) give police a quick and easy way to determine how much a driver has had to drink, and breath-test results are often used in court to prove a DUI charge.

This article discusses the differences between two types of breathalyzers: PAS (“preliminary alcohol screening”) and EBT (“evidential breath test”) devices.

PAS Tests

PAS devices are breathalyzers that police use in the field. (In some states, PAS devices are called “PBTs,” for “portable breath test.”) Generally, PAS devices are used by police to determine whether the driver has had too much to drink—not necessarily the precise amount of alcohol in the driver’s system. In other words, police typically use PAS tests to assess whether there’s probable cause for an arrest rather than to gather evidence for trial.

The small size of PAS devices makes them convenient for roadside use. But PAS machines aren’t always all that accurate. Accuracy does, however, depend on the specifications of the particular device. Some handheld breathalyzers—especially some of the more expensive models—are fairly precise.

Implied consent laws generally require all drivers lawfully arrested for a DUI to submit to chemical testing (normally, a breath or blood test). However, many states make prearrest PAS tests optional—meaning, there’s no legal consequence for a driver who refuses a PAS test.

In some states, PAS results can’t be used in court—are “inadmissible,” in other words—to prove a DUI charge.

Field Sobriety Tests

With FSTs, the officer tests the driver’s balance, coordination, and cognitive abilities. FSTs typically involve tasks like balancing on one leg, walking a straight line, or following a pen or other object with your eyes.

FSTs are optional—meaning, there aren’t any legal consequences for refusing to participate.

Implied Consent Laws and DUI Chemical Tests

If the police officer continues to suspect the person is under the influence, he or she might arrest the person and move on to more scientific tests. Every state has “implied consent” laws, which say that anyone lawfully arrested for driving under the influence must agree to take a chemical test to determine the amount of alcohol and drugs in his or her system. In most cases, the test will be of the driver’s blood or breath. However, occasionally, the officer will ask the driver to give a urine sample.

The results of these tests can be vitally important in determining whether a driver is charged or convicted of DUI. (A “per se” DUI charge is based on the concentration of drugs or alcohol the driver has in his or her system.) Prosecutors often rely heavily on chemical test results in proving a DUI charge at trial.

EBT Devices

Once a DUI arrest is made, officers typically want to take an accurate measurement of the driver’s BAC. The end-goal of a DUI arrest is to get a conviction in court. BAC is crucial for proving a DUI per se charge and can also be helpful in proving an impairment charge.

EBT devices provide police with the easiest way to get a precise BAC measurement. Though blood tests may be slightly more accurate, they require the assistance of medical personnel and are more invasive than breath tests.

EBT machines are typically more accurate but larger than PAS devices. Whereas a PAS device would fit in the palm of your hand, EBT devices are normally big, stationary machines that are kept at the jail or police station.

A driver generally does not have a right to refuse an EBT. (Though some states let drivers choose between blood, breath, or urine testing.) Refusal typical leads to a longer license suspension than would otherwise be the case. And, in most states, prosecutors are allowed to tell the jury at trial that the driver refused DUI testing.

Source

https://www.nolo.com/legal-encyclopedia/dui-breath-alcohol-tests.html

Speak With One Of Our DUI Attorneys In Scottsdale

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Canterbury Law Group’s DUI Lawyers in Phoenix and Scottsdale will defend your case with personal attention and always have you and your best interests in mind. Call today for an initial consultation!

We are experienced criminal defense attorneys and will fight for you to obtain the best possible outcome. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Married Debt

Whether you are liable for your spouse’s debts depends on whether you live in a community property or equitable distribution state.

Whether you and your spouse are responsible for paying each other’s debts will depend primarily on where you live. If your state follows “common law” property rules, spouses are only liable for their own debts, with a few exceptions. For instance, both spouses must pay debts for family necessities like food, shelter, or tuition for the kids, although how states treat joint and separate debts varies slightly, so you’ll want to check your state laws.

However, if you live in one of a few states with “community property” rules, both you and your spouse will owe most debts incurred by either one of you during the marriage.

Keep reading to learn more about:

  • when you owe your spouse’s debts, and
  • how community property laws will affect you and your spouse in bankruptcy.

If you plan to file for bankruptcy in California or another community property state, you’ll want to know about the “limited community property discharge” that arises when only one spouse files for bankruptcy. Although all community property will be safe from creditor collection, the nonfiling spouse’s separate property will remain at risk.

Community Property States

The states that follow community property rules are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. (In Alaska, spouses can sign an agreement making their assets community property, but few people choose to do this.)

When Are You Responsible for Your Spouse’s Debt?

In community property states, most debts incurred by either spouse during the marriage are owed by the “community” (the couple), even if only one spouse signed the paperwork for a debt. The key here is during the marriage. So if you incur a debt, such as a credit card balance, while you’re single and then get married, it won’t automatically become a joint debt. However, an exception can occur when a spouse signs on to an account as a joint account holder after getting married. Some states, like Texas, have a more nuanced way of analyzing who owes what debts by evaluating who incurred the debt, for what purpose, and when.

After a legal separation or divorce, only the spouse who incurred the debt owes it unless the debt was incurred for family necessities, to maintain jointly owned assets (for example, to fix a leaking roof), or if the spouses keep a joint account.

If you’re considering wiping out debt in bankruptcy with a debt discharge, start by learning how bankruptcy works and what to avoid before filing for bankruptcy.

How Are Income and Property Shared Between Spouses?

In community property states, couples share income, as well. All income earned by either spouse during marriage and property bought with that income is community property, owned equally by husband and wife. Gifts and inheritances received by one spouse and separate property owned before marriage that remains separate are the respective property of one spouse alone. Comingling a gift or inheritance, such as by adding it to a joint bank account, could erase the protection. All income or property acquired after a divorce or permanent separation is also separate.

What Property Can Be Taken to Pay Debts?

In a community property state, creditors of one spouse can go after the assets and income of the married couple to make good on joint debts, and remember, most debts incurred during marriage are joint debts.

You’ll find out more about when you’re responsible for your spouse’s business debt here.

Creditors can go after joint assets in a community property state no matter whose name is on the asset’s title document. For example, a business owner’s name might not be on the title to her spouse’s boat. Still, in most community property states, that won’t stop a creditor from suing in court to take the boat to pay off the business owner’s debts assuming the boat was purchased with community funds and not separate funds.

Community property collection rules also apply to a spouse’s separate debt, such as one spouse’s child support obligation from a prior relationship, or a debt in one spouse’s name only where the spouse hid the marriage. In that case, a creditor can go after only that spouse’s half of the community property to repay the debt.

Do You Owe Your Spouse’s Student Loans?

With one exception (see below), the community property rules apply to student loan debt the same way they apply to other debts acquired during the marriage. Both spouses are responsible 100% for a student loan taken out during the marriage even though only one spouse signed for it. When the parties divorce, each spouse will be awarded 50% of the debt in the property settlement.

California presents an exception to the rules applied in other community property states. According to California law, student loans aren’t community debts, and a judge doesn’t have to split this kind of debt 50/50.

Recognizing that a student loan can benefit both spouses, California takes a more equitable approach than other states. In assigning each spouse a percentage of the outstanding student loan, a judge will consider factors like:

  •  the effect of the course of study on the community
  •  whether the other spouse also went to school, and
  •  the course of study’s effect on the spouse’s ability to support the community.

How to Remove a Spouse’s Liability

Couples in community property states can sign an agreement with each other to have their debts and income treated separately. Signing a pre- or postnuptial agreement like this can make sense for a couple before one spouse goes into business. But if you’re already in business, signing an agreement now won’t protect your spouse from liability for business debts that you already owe, only from liability for future business debts.

Keep in mind that this agreement will be between you and your spouse. It likely won’t affect whether a creditor can pursue you for debt, only your ability to pursue your spouse’s personal assets for payment. Check with your family law lawyer or bankruptcy lawyer for clarification.

You can also sign an agreement with a particular store, lender, or supplier, stating that the creditor will look solely to your separate property for repayment of any debt, essentially removing your spouse’s liability for any obligation or debt from the contract—if you can get the other party to agree.

How Does Bankruptcy Work in Marriage?

If only one spouse files for Chapter 7 bankruptcy in a community property state, creditors can collect community debts against the nonfiling spouse. However, the creditor can’t forcibly take community assets to pay community debt discharged in the filing spouse’s bankruptcy. The creditor can only collect against the nonfiling spouse’s separate property.

This protection is known as a “limited community property discharge.” (11 USC § 524(a)(3).) Also, if you’re considering divorce, talk with your lawyer about the effect the divorce will have on your limited community discharge. You could likely lose its protection. Learn more about filing for bankruptcy without your spouse.

Source

https://www.nolo.com/legal-encyclopedia/debt-marriage-owe-spouse-debts-29572.html

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Establishing Paternity and FAQ

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Q: How does the system legally determine the father of a child?

A: Assuming there’s no agreement between the parents, either the mother, alleged father, or even in some cases the child or a state agency can bring a paternity suit to identify a child’s genetic father. Most paternity actions are filed to establish financial or moral responsibility, gain visitation rights, or settle other controversial issues between the parents.

 

If the circumstances warrant, a judge will order a blood test from which DNA testing can conclusively determine whether the alleged father is the child’s biological father. After science determines a genetic link, the judge can make a ruling on the issues outlined above or the parties can come to a private agreement.

 

Q: Can courts recognize the biological father as the only legal father?

A: The short answer is no. The system could designate a man other than the biological father as the father of the child. Determining legal paternity can be a complicated problem which attempts to find clarity in circumstances which range from straightforward to downright complex. Making this determination in a lawsuit often involves heated arguments on both sides.

 

The legal standard for paternity varies from state to state. While we’ll cover the basics below, you should investigate your state’s laws in order to make an informed determination about your family situation.

 

There are several legal classifications of fathers. Once established, paternity is difficult to change, and unless there is a private agreement between the father and mother to the contrary, fathers must legally pay child support.

 

Acknowledged Father

An acknowledged father is the biological father of a child born to unmarried parents. These parents admit that he’s the father. In some jurisdictions, an acknowledged father and the birth mother can sign a declaration of paternity to establish paternity. The man then becomes a declarant father. Acknowledged and declarant fathers are obligated to pay child support.

 

Presumed Father

Generally, “presumed father” is the most contested categorization of fathers. There are four circumstances in which a man is presumed to be the father of the child:

 

  1. He was married to the mother when the child was either born or conceived;
  2. He attempted to marry the mother in apparent compliance with the law when the child was either born or conceived, but technical reasons invalidate the marriage;
  3. He married the mother after the birth of the child and agreed to have his name put on the birth certificate or agreed to support the child; or
  4. He welcomed the child into his home after birth and openly holds the child out as his own.

Equitable Father

A father who’s not the biological or adoptive father, but who has a close relationship with the child, or where the relationship is encouraged by the biological parents, is an equitable father. Non-biological fathers during divorce proceedings generally make this legal claim.

 

The doctrine of the equitable parent derives from the understanding that a child and a non-biological parent may have such a close parent/child relationship that the court will grant the equitable parent custody rights. It seeks to take into account the love and support of a man serving as the true, day-to-day father of a minor child.

 

These three requirements let someone be recognized as an equitable father:

 

  1. The father and child mutually acknowledge a relationship as father and child;
  2. The father desires to have the rights afforded to a parent; and
  3. The husband is willing to take on the responsibility of paying child support.

Not all states recognize equitable fathers, so be sure to investigate your state’s laws and/or contact an attorney in your state.

 

Unwed Father

Historically, unwed fathers have enjoyed fewer rights with respect to their children. If an unwed father wishes to retain rights with a minimum of court intervention, he should acknowledge his paternity and, if possible, come to an agreement with the mother confirming his status. If another man becomes the presumed father, retaining full rights for the unwed father becomes difficult.

 

Assuming that there isn’t another man who seeks to be named the child’s father, the unwed father can retain visitation rights and seek custody of the child.

 

Q: If I legally establish that a man is my child’s father, is he responsible for child support? How do I get it from him?

A: If paternity is established by one of the methods above, the father is required to provide child support. The father also gets visitation rights and can seek custody of the child.

 

Once paternity is established, if the father refuses to pay child support, or does not provide enough, he’ll be subject to enforcement measures. All states have child support or child welfare agencies which can track down “deadbeat dads” through a variety of methods, including Social Security numbers, employment records, DMV searches, etc. Courts can place liens on property, garnish wages and even imprison fathers who don’t pay child support.

 

Q: If I helped raise a child and later discovered they weren’t mine, can I sue the mother?

If a father raised a child who the mother led him to believe was his own and later discovered the child was not his biologically, he may be able to sue the mother. However, winning such a lawsuit would be difficult at best.

 

The case would most likely rely on relevant state laws and whether the mother knew the child was not his and knowingly misled him. Regardless, the advice and assistance of a legal professional who specializes in family law would be extremely valuable for a father in this kind of sensitive situation.

 

Q: What if I can’t afford to file a lawsuit for paternity?

A: Fees required to bring a paternity suit can be costly. There is the cost of legal representation. Depending on where you live and its paternity test processes, you might be required to pay for the testing. Some states have mechanisms which allow paternity suits to be filed by the state at no cost to the mother seeking to establish paternity.

 

State child support agencies will file the paternity suit on your behalf. Many of these agencies are funded by the federal Temporary Aid to Needy Families (TANF) program. Find out more about TANF and the state agencies which administer the program at the Federal Office of Family Assistance. This is not an exhaustive list, so be sure to explore your city, county and state child support agencies to find out more.

Get Legal Assistance With Your Paternity Matter

Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.

In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

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Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Common Misconceptions about Divorce in Arizona Divorce & Bankruptcy: Which Comes First?

We all have our own ideas about divorce. When it comes to the legal aspects of divorce, most people have significant misunderstandings. The legal process to divorce in Arizona is straightforward, but cases that go before a judge can become really complicated. If you are considering a divorce, it’s very important to realistically understand the legal process and consequences. Here is a list of common misconceptions about divorce most Arizonians have:

Does Filing a Court Petition Equal a Divorce?

When you file for a divorce in a court, you are required to file a petition. Some people believe this petition to be equal to a legal divorce. It is not. You are legally divorced when a judge says so and issues a ruling which recognizes the formal Date of Separation. From that day on, your civil status will be officially divorced and single, but not a day before. This date is very important because your income and property ownership (that you retain after the proceedings) only become non-marital property after this date is set by the court.

Can Child Custody be Arranged According to a Prenup?

This is an absolutely inaccurate idea. Prenups can set provisions for things like asset division in a divorce. However, child custody is solely up to a family court to decide. Child custody is largely a matter of public policy that ensures the well-being of a child. That requires judicial assessment of a child’s current living situation. Therefore, having provisions for child custody is highly improper in a prenup agreement. It could possibly render the whole agreement void. To make sure your prenup agreement has no chance of being voided by a court, consult with a divorce attorney in Scottsdale.

Can A Spouse be Ordered to Pay My Attorney’s Fees?

In Arizona, the laws allow for a divorce court to order one spouse to pay the legal fees of the other in whole or part. However, this is very much subject to a judge’s independent review. The aim of these laws is to eliminate any income disparity between the spouses from hindering access to similar legal representation (going to court on “a level playing field” so to speak). However, the judge will see how “reasonable” both parties are. In other words, your spouse will be ordered to pay your legal fees if only the request is evaluated as reasonable and that your positions are in fact reasonable as presented in court.

Is Alimony is Forever in Arizona?

Courts in Arizona typically set alimony for a specific period of time, such as until a child comes of age. The purpose of alimony is to provisionally support a spouse in need. But alimony is not financial life support. If the receiving spouse dies, remarries or cohabits with another, then alimony can be terminated.   Generally speaking, the longer the duration of the underlying marriage, the longer the potential duration of payout on spousal maintenance.

Creditors will Only Go After the Spouse for Debts He or She Agrees to Pay Off

Arizona is a “community property” state. That means that any debts incurred during a marriage become the presumptive responsibility of both spouses. The actual person who signed the loan agreement may not always matter. This status applies even after a divorce. Your spouse could agree to pay off a credit card loan or the home equity line of credit in the divorce agreement, but you won’t be completely off the hook. If the spouse fails to pay, the third party creditors could come after you. Any agreement in a divorce is between you and the spouse, not the creditor.

Filing Together: A Joint Petition

A bankruptcy case starts when an individual, a married couple, or a business files official bankruptcy paperwork to the court. A married couple filing together will submit a “joint petition” containing the financial information of both spouses in one set of documents.

Divorcing couples often file together because it can be more efficient. For example, filing a joint petition comes with the following benefits:

the bankruptcy will wipe out (discharge) the qualifying debt of both spouses, thereby reducing the issues to be decided in divorce court, and it costs less to file bankruptcy together as opposed to apart.

Married couples are not obligated to file together, however. If one spouse needs bankruptcy protection immediately, an individual filing might make sense. Or each spouse might find it easier to qualify for bankruptcy after the divorce due to a mutual drop in income. But when it’s feasible, many couples find that filing together streamlines the divorce process.

Bankruptcy and Divorce Costs

Bankruptcy filing fees are the same for joint and individual filings. So filing a joint bankruptcy with your spouse before a divorce can save you a lot of legal fees. Also, if you decide to hire a bankruptcy attorney, your attorney fees will likely be much lower for a joint bankruptcy than if each of you filed separately. However, you should let your bankruptcy attorney know about your upcoming divorce as there may be a conflict of interest for him or her to represent you both.

Filing for bankruptcy before a divorce can also simplify the issues regarding debt and property division and lower your divorce costs as a result.

Chapter 7  vs. Chapter 13 Bankruptcy

Chapter 7 bankruptcy is a liquidation bankruptcy designed to get rid of your unsecured debts such as credit card debt and medical bills. In Chapter 7 bankruptcy, you usually receive a discharge after only a few months. So it can be completed quickly before a divorce.

By contrast, a Chapter 13 bankruptcy lasts three to five years because you have to pay back some or all of your debts through a repayment plan. So if you were looking to file a Chapter 13 bankruptcy, it might be a better idea to file individually after the divorce because it takes a long time to complete.

Property Division

Wiping out your debts jointly through bankruptcy will simplify the property division process in a divorce. However, before filing a joint bankruptcy, you must make sure that your state allows you enough exemptions to protect all property you own between you and your spouse. Certain states allow you to double the exemption amounts if you file jointly. So if you own a lot of property, it may be a better idea to file a joint bankruptcy if you can double your exemptions.

If you can’t double your exemptions and you have more property than you can exempt in a joint bankruptcy, it may be more advantageous to file individually after the property has been divided in the divorce. Also, keep in mind that if you file bankruptcy during an ongoing divorce the automatic stay will put a hold on the property division process until the bankruptcy is completed.

Discharging Marital Debt

Litigating which debts should be assigned to each spouse in a divorce can be a costly and time-consuming process. Further, ordering one spouse to pay a certain debt in a divorce decree does not change the other spouse’s obligations toward that creditor.

For example, let’s say your ex-husband was ordered in the divorce to pay a joint credit card you had together. If he doesn’t pay it or files bankruptcy, then you are still on the hook for the debt, and the creditor can come after you to collect it. If you end up paying the debt, you have a right to be reimbursed by your ex-husband because he violated the divorce decree. This holds true even if he filed bankruptcy because he can discharge his obligation to pay the creditor but he cannot discharge his obligations to you under the divorce decree.

However, trying to collect from your ex will usually mean spending more money to pursue him in court. As a result, it may be in both spouses’ best interest to file bankruptcy and wipe out their combined debts before a divorce.

Income Qualification for Chapter 7 Bankruptcy

If you intend to file a Chapter 7, the decision to file before or after a divorce can come down to income if you maintain a single household. If you wish to file jointly, you must include your combined income in the bankruptcy. If your joint income is too high and you don’t pass the Chapter 7 means test, you might not be able to qualify for a Chapter 7.

This can happen even if each spouse’s income individually is low enough to qualify on his or her own. This is because Chapter 7 income limits are based on household size and the limit for a household of two is not twice that of a single person household (it’s usually only slightly higher). In that case, it may be necessary to wait until each spouse has a separate household after the divorce to file bankruptcy.

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale, Scottsdale Divorce, Scottsdale Legal Help
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DUI Implied Consent Laws, Chemical Testing Alcohol Blow Test

DUI Implied Consent Laws and Chemical Testing

How breathalyzers are used by law enforcement to detect and prosecute DUI/DWI offenders.

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The first DUI laws prohibited driving while “under the influence” or “intoxicated” (DWI) by alcohol. So, convictions were based on the driver’s actual level of impairment. In other words, prosecutors were required in all cases to prove the driver was actually affected by the alcohol consumed. It’s still against the law to drive while impaired by alcohol. But now “per se” DUI laws also make it illegal to drive with a blood alcohol concentration (BAC) .08% or more.

Breath-test devices (also called “breathalyzers”) give police a quick and easy way to determine how much a driver has had to drink, and breath-test results are often used in court to prove a DUI charge.

This article discusses the differences between two types of breathalyzers: PAS (“preliminary alcohol screening”) and EBT (“evidential breath test”) devices.

PAS Tests

PAS devices are breathalyzers that police use in the field. (In some states, PAS devices are called “PBTs,” for “portable breath test.”) Generally, PAS devices are used by police to determine whether the driver has had too much to drink—not necessarily the precise amount of alcohol in the driver’s system. In other words, police typically use PAS tests to assess whether there’s probable cause for an arrest rather than to gather evidence for trial.

The small size of PAS devices makes them convenient for roadside use. But PAS machines aren’t always all that accurate. Accuracy does, however, depend on the specifications of the particular device. Some handheld breathalyzers—especially some of the more expensive models—are fairly precise.

Implied consent laws generally require all drivers lawfully arrested for a DUI to submit to chemical testing (normally, a breath or blood test). However, many states make prearrest PAS tests optional—meaning, there’s no legal consequence for a driver who refuses a PAS test.

In some states, PAS results can’t be used in court—are “inadmissible,” in other words—to prove a DUI charge.

EBT Devices

Once a DUI arrest is made, officers typically want to take an accurate measurement of the driver’s BAC. The end-goal of a DUI arrest is to get a conviction in court. BAC is crucial for proving a DUI per se charge and can also be helpful in proving an impairment charge.

EBT devices provide police with the easiest way to get a precise BAC measurement. Though blood tests may be slightly more accurate, they require the assistance of medical personnel and are more invasive than breath tests.

EBT machines are typically more accurate but larger than PAS devices. Whereas a PAS device would fit in the palm of your hand, EBT devices are normally big, stationary machines that are kept at the jail or police station.

A driver generally does not have a right to refuse an EBT. (Though some states let drivers choose between blood, breath, or urine testing.) Refusal typical leads to a longer license suspension than would otherwise be the case. And, in most states, prosecutors are allowed to tell the jury at trial that the driver refused DUI testing.

Source

https://www.nolo.com/legal-encyclopedia/dui-breath-alcohol-tests.html

Speak With One Of Our DUI Attorneys In Scottsdale

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Canterbury Law Group’s DUI Lawyers in Phoenix and Scottsdale will defend your case with personal attention and always have you and your best interests in mind. Call today for an initial consultation!

We are experienced criminal defense attorneys and will fight for you to obtain the best possible outcome. Our firm will rigorously represent you, so you can get on with your life. Call today for an initial consultation! 480-744-7711 or [email protected]

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Regular Post
Written by Canterbury Law Group

Paternity Blood Tests and DNA

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Paternity can be determined by highly accurate tests conducted on blood or tissue samples of the father (or alleged father), mother, and child. These tests have an accuracy range of between 90 and 99 percent. They can exclude a man who is not the biological father, and can also show the likelihood of paternity if he’s not excluded. These tests have a significant legal impact when it comes to establishing child custody and support.

In a contested paternity case, a party must submit to genetic tests at the request of any other party. If the father could be one of several men, each may be required to take a genetic test to determine paternity. There are several different ways to establish whether an alleged father is the natural and legal father of the minor child, such as the use of paternity blood tests and DNA paternity tests.

Paternity Blood Tests

Paternity blood tests were first performed in the middle half of the twentieth century, by comparing blood types of tested parties. This involved isolation of blood sera from antigen-challenged individuals that did not possess certain red blood cell antigens. These antigens are protein molecules that may be combined with sugar molecules, and reside in the red blood cell membrane. These sera cause coagulation of red blood cells in individuals that possess that particular red blood cell antigen.

In the ABO blood typing system, humans can possess the A antigen (A blood type), the B antigen (B blood type), both the A and B antigen (AB blood type), or neither of these antigens (O blood type). Red blood cell antigen systems of this sort can be used for paternity blood testing because there are genes that code for the antigens and these are inherited genes.

A mother who has Type B blood and a father who has Type O blood could not have a child who has type AB blood. The true father of the child must have the gene for the A antigen. Using RBC antigen systems for paternity blood testing did not provide for a very powerful test because the frequencies of the genes that coded for the antigens are not very low.

In the 1970s a more powerful test was developed using white blood cell antigens or Human Leukocyte Antigens (HLA), resulting in a test that was able to exclude about 95 percent of falsely accused fathers. Several milliliters of blood are required to perform the test.

Blood types alone cannot be used to determine who the father is, but they can be used to determine the biological possibility of fatherhood.

DNA Paternity Tests

DNA (deoxyribonucleic acid) is the genetic material present in every cell of the human body. Except in the case of identical multiple births, each individual’s DNA is unique. A child receives half of his or her genetic material (DNA) from the biological mother, and half from the biological father. During DNA testing, the genetic characteristics of the child are compared to those of the mother. Characteristics that cannot be found in the mother must have been inherited from the father.

DNA paternity testing is the most accurate form of paternity testing possible. If DNA patterns between the child and the alleged father do not match on two or more DNA probes, then the alleged father can be totally ruled out. If the DNA patterns between mother, child, and the alleged father match on every DNA probe, the likelihood of paternity is 99.9 percent.

A DNA test can be performed by testing the blood or a cheek swab. A blood test uses Restriction Fragment Length Polymorphism (RFLP) to compare the father’s DNA with the DNA of the child. A cheek swab uses a buccal smear to collect cells inside the cheek to test for DNA.

These tests provide a DNA sample for testing. Children can be tested at any age. Paternity DNA testing can even be done on an umbilical cord blood specimen at birth. Since DNA is the same in every cell of the human body, the accuracy of testing performed on cheek cells utilizing the Buccal Swab is the same as an actual blood sample.

Need Help Establishing Paternity? Get in Touch with an Attorney

From paternity blood tests to DNA paternity tests, the science behind determining a child’s father has advanced quite significantly over time. However, certain legal procedures are required in order to compel someone to submit to a paternity test. If you’re interested in learning more about how to establish paternity, you should consult with a family law attorney in your area.

Source

https://www.findlaw.com/family/paternity/paternity-tests-blood-tests-and-dna.html

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

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(480) 744-7711
INITIAL CONSULTATION

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Divorced Parents
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Regular Post
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The Differences Between a Charge Off and Repossession in Bankruptcy

What Happens to Liens in Chapter 7 Bankruptcy?

Learn the difference between a charge off and a repossession and how they’re handled in bankruptcy cases.

A charge off and a repossession are two very different things—although both could happen to one debt. In this article, you’ll learn what each term means, as well as how the bankruptcy court handles these events in Chapter 7 and Chapter 13 bankruptcy.

What Is a Charge Off?

“Charge off” is an accounting term that simply means that the account has been removed from the company’s books because no payments have been made in 120 to 180 days (depending on the type of account.)

Most people come across the term “charge off” after reviewing a credit report. Because a charge off is associated with an unpaid debt, many assume that charged off means that the debt is no longer collectible and that you no longer owe the money. That’s not the case.

A notation of a charge off indicates that the lender is no longer showing the account as a bad debt on the bottom line. That usually doesn’t stop the lender’s collection efforts. The lender can continue trying to collect the debt. Often the lender will transfer or sell the debt to a collection agency. In turn, the collection agency either collects the debt for the lender or, if the collection agency purchased the debt, collects it for its own benefit. Either way, a charge off is merely an accounting term, and you still owe the debt.

The Federal Reserve requires a lender to charge off a credit card debt when it is 180 days late. A car loan or installment loan must be charged off when it is 120 days late.

Can a Charged Off Loan be Reinstated?

Once a loan is charged off, don’t count on the loan showing up on the company’s books again. Even if you offer to pay it, chances are it’s been transferred or sold and the original company no longer has an interest in it. If you pay the debt, the company that purchased the account should show that you paid it off, but unfortunately, the original lender can continue reporting the charge off for seven years.

How are Charge Offs Treated In Bankruptcy?

When you file for bankruptcy, you agree to disclose your entire financial situation in exchange for the benefits provided by the chapter that you file. (Find out which bankruptcy will be better for you in What Is the Difference Between Chapter 7 and Chapter 13 Bankruptcy?)

You must list all debts when you fill out your bankruptcy paperwork—including charged off accounts. If you don’t list them, you risk the debts not being discharged (wiped out). All kinds of debt can be charged off, including car loans and other debt secured by collateral, and unsecured debt, like a credit card balance, medical bill, or personal loan. If you file for Chapter 7 bankruptcy, you can expect the court to discharge the charged-off debt within three to four months (the average time it takes for a Chapter 7 case to end). In a Chapter 13 bankruptcy, you’ll pay any discretionary income—the amount remaining after paying allowed monthly expenses—to your unsecured creditors over the course of your Chapter 13 bankruptcy payment plan. All eligible unsecured debts get discharged when you complete your plan.

If the charge off is a secured debt—such as a car loan or mortgage—then you’ve likely already lost the collateral (the house or the car) through repossession (see below) or foreclosure. In that case, you’ll list the account as an unsecured debt in your bankruptcy paperwork.

If a debt has been charged off but you still have the collateral, and you’d like to keep it, you should speak with a bankruptcy attorney as soon as possible.

What Is a Repossession?

A repossession occurs when a creditor takes possession of the collateral—usually a car—that you put up when taking out a loan. Here’s how it works.

Before a lender agrees to lend you money for a car purchase, you must agree to guarantee payment of the loan with the vehicle. The contract creates a lien in favor of the lender. The lien allows the lender to take the car, sell it, and apply the sales proceeds to the loan if you default on your payment. If the auction price isn’t enough to pay off the loan, you’ll still owe the remainder called a “deficiency balance.” (The lender releases the lien on the car after you pay the loan balance.)

Can a Loan on a Repossessed Car be Reinstated?

If you lose the car to repossession, most state laws will give you some time to get the car back. The process is called “reinstating the loan.” Reinstatement requires you to pay any past-due amount, as well as the lender’s costs for the repossession.

Repossessions can occur with property other than cars as well. Furniture, jewelry, and other personal property pledged to secure a loan can be repossessed, as long as the lender follows the state laws.

Can a Car Loan be Charged Off Without a Repossession?

It’s possible to charge off a loan without having the dealer repossess the car. As stated earlier, car loans are supposed to be charged off if no payment has been made for 120 days. But, unsecured debt, like credit cards or medical accounts, can stay on the books until they’re 180 days old. Usually, a lender will repossess the collateral and sell it, long before 120 days pass. Almost always, the proceeds of the sale won’t be enough to cover what’s owed on the loan, and most lenders will need to charge off the remaining balance.

No law requires the lender to repossess the collateral before charging off the loan. The lender could choose to do it the other way around or could choose not to repossess the car at all. The lender might be forced to forgo repossession if the car can’t be located or if the car’s value is less than it would cost to sell at auction (for instance, if the car was totaled in an accident). The lack of a repossession doesn’t alter the need to charge off the loan or prevent the lender from selling the charged off loan to a debt buyer.

How are Repossessions Treated In Bankruptcy?

If your car is repossessed before the bankruptcy is filed, you might be able to reinstate the loan and regain possession of the car, but you have to work quickly. You’ll have to file a Chapter 13 bankruptcy case and propose a three to five-year repayment plan.

In Chapter 13 bankruptcy, it’s possible to reinstate a loan by including it in your repayment plan. In fact, this is one of the key benefits of a Chapter 13 bankruptcy case. Not only will it stop a repossession (or a foreclosure) in its tracks, but you can spread out your payment arrearages over the repayment plan rather than paying the entire overdue amount right away. You’ll have to continue paying your monthly payments, too, but by the end of the payment plan, you’ll own the car free and clear. If you don’t want to keep the car, the balance owed will get discharged (wiped out) with other qualifying debt at the end of your plan.

Filing a Chapter 7 case instead will not help you get your car back, because Chapter 7 has no mechanism for getting you caught up or reinstating the loan.

Which is Worse: Charge Off or Repossession?

If you default on your car loan, you could suffer a charge off, a repossession, or both. It’s hard to know whether the charge off or the repossession looks worse on your credit report. Credit scores are based on all the information in your credit report, good and bad, and the credit reporting agencies and companies that produce credit scores like the FICO score keep their scoring models a secret. Someone having trouble with one account like a car loan often has difficulty keeping other accounts in line. Your credit score can take a hit from late car payments, repossessions, past due credit card payments, judgments, tax liens, and other negative or derogatory entries.

Experience tells us that both a repossession and a charge off of the car loan can cause a significant hit, maybe as much as 100 points. Not only will both a repossession and a charge off have a profound effect on your score in the short run, but they will also continue to influence your credit score and the credit decisions of potential lenders for seven years (although the derogatory information has less effect on your credit score the older it gets.)

Source

https://www.nolo.com/legal-encyclopedia/the-differences-between-a-charge-off-and-repossession-in-bankruptcy.html

bankruptcy, bankruptcy attorneys, Chapter 13, Chapter 13 Bankruptcy, Chapter 7, Chapter 7 Bankruptcy, Scottsdale Attorneys, Scottsdale Legal Help
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Regular Post
Written by Canterbury Law Group

Establishing Paternity

When a child is born to a married couple, a legal presumption arises that the husband is the child’s father. This isn’t the case with unmarried couples. Establishing paternity is important for unmarried couples in the event they break up and one parent seeks custody or child support for inheritance purposes or a variety of other circumstances. If the parents get married after the mother becomes pregnant but before birth, the husband’s paternity is established in the same manner as if the parents were married at the time of conception.

But sometimes paternity is established after birth, especially when the presumptive father has denied paternity. Read on for a detailed look at the chronology of establishing paternity.

Establishing Paternity After Birth

If the parents marry after the child is born, they can sign a legitimation form (or a Declaration of Paternity), which grants the same rights as if the parents were married at the time of birth.

Even if parents never marry, paternity can be established voluntarily when the parents are certain of the father’s identity. In such cases they may sign a legal form called a voluntary acknowledgment of paternity, or something similar, and then file the form with the court or appropriate state agency. Executing this voluntary acknowledgment can be done right in the hospital following the child’s birth, or any time thereafter. The father’s name is then included on the child’s birth certificate.

Even if a voluntary acknowledgment isn’t signed, the parties may later enter into an agreement with the help and advice of their attorneys that establishes the father’s identity and resolves custody and support issues.

Filing a Paternity Lawsuit

If neither of these voluntary procedures occurs, legal action may be necessary. A mother may file a paternity action to establish that the man she believes to be her child’s father in fact is, or, if the mother is receiving public assistance, the state may initiate the action in order for the child to begin receiving support from the father. The putative, or probable, father’s presence in court will be demanded, and he may be required to submit to DNA testing if he contests his paternity. Genetic blood test results are usually available within a few weeks, and they can establish (or negate) paternity with about 99 percent accuracy.

If paternity is established in this manner, the court will enter an order regarding the father’s paternity. The father then becomes legally obligated to pay child support according to the state’s guidelines, which are generally based on both parents’ incomes and the needs of the children.

Settling Before the Verdict

At any time in this process prior to entry of the court’s order, the parties may still enter into a settlement agreement that resolves the custody and financial issues relating to the child. In most instances, it will be the father that is legally required to provide financial support to his children. One alternative option that is sometimes pursued, however, is to offer the mother a lump-sum child support payment in exchange for her agreement to not pursue additional child support in the future. While this would give the mother the advantage of having a lump sum with which a major purchase, such as a home, could be accomplished, it has many potential disadvantages as well. It is also exceedingly rare for the courts to rule this way.

Once paternity has been established, the child obtains many legal rights beyond child support. The child can inherit from their father, is eligible for health insurance coverage under the father’s group policy, and  is entitled to Social Security benefits if the father dies or becomes disabled. They also may be entitled to wrongful death benefits if the father dies as a result of someone else’s negligence, can obtain medical history information, and may reap the emotional benefits of establishing paternity.

Get Legal Assistance With Your Paternity Matter

Establishing paternity is an important part of the court system as it’s one way to protect children and enforce the legal responsibilities of parents. The process for establishing paternity can differ among the various states.

In order to understand the laws of your state and how they may apply to your situation, you should consider speaking with an experienced family law attorney today.

Source: https://www.findlaw.com/family/paternity/chronology-establishing-paternity.html

Speak With Our Father’s Rights Attorneys In Scottsdale

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(480) 744-7711
INITIAL CONSULTATION

Our Father’s Rights, child custody, and guardianship attorneys in Phoenix and Scottsdale address your case with concern and personal attention, and always have you and your children’s best interest in mind when offering legal solutions.

We are experienced family law attorneys and will work with you to obtain the best possible outcome in your situation. You can trust us to represent you fully, so you can get on with your life. Call today for an initial consultation! 480-744-7711.

*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.

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Divorced Parents
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Regular Post
Written by Canterbury Law Group

Managing Marital Property: Do’s and Don’ts

Property division can become challenging for divorcing couples. However, this need not be a challenge.  And If you and the soon-to-be-ex cannot come to good terms on your own, a court will have to do it for you. Under Arizona’s community property law, debts and assets accumulated during a marriage belong to both parties 50/50 in the absence of a prenuptial or postnuptial agreement that says otherwise.  Arizonian family courts emphasize fairness when dividing up a property. Unlike in some states, the property may not be divided equally 50/50, but equitably in the eyes of the judge assigned to your case.  This can sometimes mean 55/45 or 60/40 or 40/60—every case is unique.

No matter what the facts, you will have to hire a talented divorce attorney in Scottsdale, Phoenix or your local area in the state. Absent years of litigation experience, you likely won’t be able to capably represent your interests in court without a deep knowledge of divorce and property laws in the state. If you are undergoing a process of dividing property in a divorce, here are some important items you should be aware of:

Determine if the Property Belongs to the Community or the Separate Category

There is a very clear distinction between community and separate property under Arizona law. Separate property is assets a spouse owned before marriage, inherited solely during the marriage, was gifted solely during the marriage, or purchased alone during the marriage with sole and separate finances. A prenuptial or postnuptial contract may also designate that certain items are to be treated as separate property.  Absent these facts, the law presumes all property and all debt, acquired or originated during the marriage, is community property.

Courts in Arizona only have jurisdiction over community property, not either spouse’s sole and separate property. Each party will have to provide evidence for separate property claims in the form of financial documents. It is possible that property that was originally separate later becomes community property during the marriage. For example, a house purchased by one spouse before marriage may become community property following the marriage if both spouses names are later placed on the recorded deed.

The reason that each is different is that the distinction between community and separate property during the marriage can be blurry. Some spouses may have unknowingly turned separate assets into community property by the “commingling” process, where two assets are combined. A bank account owned by one spouse before marriage becomes marital property if the other spouse makes deposits to it later with community income. Sometimes assets are partially community and partially separate, such as houses and retirement accounts. A business that one spouse operated but later received contributions from the other spouse after marriage can fall into this category.   A seasoned lawyer can walk you through these issues, and advance them in a court of law.

Set Values for Property

Regardless of whether community or separate property, all assets and debts must be assigned a monetary value before equitable division. The two spouses can do this themselves, or a court can do it in case the parties cannot agree on values. Typically appraisals are used to set values of real assets, like houses, antiques, or vehicles. The toughest asset to value can sometimes be retirement accounts.  You may have to hire a financial professional like an actuary to ascertain the value of a retirement account and the growth in value of such retirement assets since the original marriage date.

The Process of Dividing Property

You can see the first section above that determining whether a property is community or separate can be complicated. Ideally, both parties come to an agreement out of court. But this rarely happens when multiple assets are in question and the stakes involve hundreds of thousands of dollars or more.

Courts may divide up property in multiple ways. In the case of property that is partially separate, the court may offer a spouse the option of buying out the remaining portion from the other. In some cases, it may be recommended to mutually sell the assets and divide the proceeds. Some property, like family homes, can be co-owned even following a divorce if children are living there or visiting each year.

Arizona courts typically divide property approximately equally among the divorcing partners. There are only a handful of exceptions to the rule. For example, if one spouse is known to have squandered money through irresponsible activities like gambling or drug use, the court may rule in favor of the other. In the case of property under massive debt, the court may rule against the spouse responsible for the debt.  At the end of the day, you will need the guidance and stewardship of experienced legal counsel to navigate these issues for you.

The following information will assist you in comprehending who owns what in terms of marital property.

Common Law Property and Marital Property States

The majority of states adhere to common law property. Consequently, what does it mean to reside in a common law property state, and who owns what following a divorce? The term “common law” is simply a term used to determine marital property ownership (property acquired during marriage). Under the common law system, property acquired by one member of a married couple is solely owned by that individual.

Obviously, if the title or deed to a piece of property is placed in the names of both spouses, then the property belongs to both partners. If the names of both spouses appear on the title, each spouse owns a one-half interest.

Distribution of property upon death or divorce: When one spouse dies, their separate property is distributed according to their will or through probate (in the absence of a will). The distribution of marital property depends on how ownership is shared between the spouses. If they hold property in “joint tenancy with the right of survivorship” or “tenancy by the entirety,” the surviving spouse inherits the property. This right is independent of the provisions of the spouse’s will.

However, if the property was owned as “tenancy in common,” then the deceased spouse’s will may direct the property to someone other than the surviving spouse. Some property does not have a title or deed. In this instance, the owner is typically the person who paid for or received the property as a gift.

In the event of a divorce or legal separation, the court will decide how the couple’s property will be divided. Obviously, the couple can enter into a premarital agreement detailing the division of marital assets upon divorce.

States with Marital and Community Property

Louisiana, Arizona, California, Texas, Washington, Idaho, Nevada, New Mexico, and Wisconsin are the states with community property. In states with community property, all assets acquired during the marriage are regarded as “community property.”

In states with community property, both spouses own the marital property equally (50/50). This marital property consists of earnings, all property acquired with those earnings, and all marital debts. Community property commences at the time of marriage and terminates when a couple physically separates with the intent to no longer be married. Therefore, any earnings or debts accruing after this date will be considered separate property.

Any assets acquired prior to the marriage are regarded as separate property and belong solely to their original owner. A spouse may transfer the title of any separate property to the other spouse (gift) or to the community property (community property) (making a spouse an account holder on bank account). Couples can also commingle their separate property with their community property, for instance by adding funds from before the marriage to the funds that constitute the community property.

Spouses may not transfer, modify, or eliminate a whole piece of community property without the consent of the other spouse, but they may manage their own portion. However, the entire piece includes the interest of the other spouse. In other words, that spouse’s share of the property cannot be alienated.

Separate property consists of

  • prior to the marriage, only one spouse owned the marital home.
  • Gifts made to only one spouse prior to or during the marriage
  • inherited property by only one spouse
  • Community property consists of
  • Earnings of either spouse during the marriage
  • Items purchased with money earned by either spouse during the marriage
  • Unidentifiable separate property that has become entangled with common property.

Distribution of property upon death or divorce:

When one spouse dies, his or her half of the community property is transferred to the surviving spouse. Their separate property may be bequeathed to whomever they choose in accordance with their will or through probate in the absence of a will. Numerous states with community property provide an interest known as “community property with the right of survivorship.”

Under this doctrine, if a couple holds title or deed to a piece of property, typically a home, then upon the death of one spouse, the title automatically transfers to the surviving spouse without the need for court proceedings.

In the event of a divorce or legal separation, all community property is divided equally (50/50). The separate property of each spouse is distributed to the spouse who owns it, rather than being divided equally.

Sometimes, economic circumstances necessitate awarding certain assets entirely to one spouse, but each spouse still receives 50 percent of the total economic value of all community property. This is most prevalent in married households. Due to the impracticality of dividing a home in half, courts frequently award one spouse the home and the other spouse other assets with a value equal to half the value of the home.

Before the marriage, the couple may enter into an agreement outlining the division of marital property upon divorce.

Exceptions to the rule of equal division:

  • Prior to or during a pending divorce, one spouse misappropriates the community property.
  • One partner carries educational debts. This is the same as debt incurred separately. The spouse retains their GSL loans upon divorce.
  • One spouse incurred tort liability NOT as a result of activity performed for the benefit of the community of marriage.
  • Personal injury awards are considered community property during the marriage, but are awarded to the injured spouse upon divorce.
  • “Negative community” refers to a situation in which the community’s liabilities and debts exceed the assets available to cover them. Here, the relative ability of the spouses to pay the debt is taken into account. The objective here is to safeguard creditors.

Managing Marital Property: What You Should Do

Do consider entering into a prenuptial or premarital agreement prior to marriage. Such agreements make clear what will happen to your property upon your death or divorce. With one, you can prevent undesirable arrangements in how your property is divided in a divorce.

Do maintain accurate and complete books and records to establish the separate nature of property you wish to keep independent from the marital estate. Property you may want to keep separate can include things you had before marriage. It can also include gifts or inheritance you receive during the marriage.

Do continue to keep all separate property separate throughout the marriage, if you’re concerned about keeping it in your family upon your death or divorce. You should also do this with other things that you would also like to keep as a personal asset. Generally, this means you shouldn’t “commingle” property you owned prior to marriage with property you and your spouse acquired during the marriage. In cases of “commingling,” it may become difficult or even impossible to legally determine if it’s separate or marital property.

Do be aware that the increase in value of nonmarital property may be considered marital, so that each spouse is entitled to a share of the increased value of a possession upon divorce or the owner’s death. This is especially true if the increase in value is considered “active” rather than “passive.” (Such increases in value are officially referred to as “appreciation.”) Passive appreciation is, for example, the increase in value of a bank account as a result of interest earned. Passive appreciation also occurs with an increase in property value that results from standard inflation. Active appreciation, on the other hand, occurs as a result of some form of effort, such as repainting rental property, home improvement projects, or actively managing a stock portfolio.

Do use only your non-marital property to purchase other property that you want to be considered separate property. In other words, a boat that you pay for with money you had before marriage and kept in a separate account during marriage may be considered separate or non-marital property. But if your spouse pays for part of it, or even helps maintain it, the boat could lose the status of non-marital property.

Do keep proceeds acquired from any personal injury case during marriage separate, if you want to prevent them from becoming you and your spouse’s marital property. The money you get from a personal injury lawsuit is yours alone, except for any portion that reimburses you for your lost income or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: What You Should Not Do

Don’t use separate funds to pay off a marital debt, or those funds could lose their non-marital character.

Don’t make deposits of income earned during the marriage into non-marital accounts. Income earned during marriage is usually considered marital property. Depositing that income into non-marital accounts can result in “commingling.” When that happens, the non-marital account is no longer considered separate property.

Don’t open a joint bank account with non-marital funds, even if you intend to keep track of which portion is separate. It’s much more prudent to maintain separate accounts if you wish to keep non-marital assets separate.

Don’t assume that just because you owned property prior to marriage, no portion of it will be deemed marital property. For example, if the home you owned before marriage increases in value during the marriage because of you and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase in value.

Don’t assume that a business you owned prior to marriage remains entirely a non-marital asset after marriage. If your business or professional practice increases in value throughout the marriage due in part to your spouse’s contributions, your spouse may be entitled to a share of the increase in value upon divorce or your death. Such contributions can be obvious, such as in bookkeeping or entertaining clients. But they can also be more subtle, such as in taking care of the home and children so that you can focus on running the business.

What is Whose? Obtain Assistance with Your Marital Property Issues

Dividing marital property upon divorce or the demise of a spouse is never an easy subject to broach. Despite the fact that the specifics of property division depend on the state in which you reside, it can be quite confusing. However, you are not required to figure out the law on your own. Consider contacting an experienced divorce attorney in your area to discuss your options.

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Written by Canterbury Law Group

Difference Between Dischargeable and Nondischargeable Debts in Bankruptcy

What Happens to Liens in Chapter 7 Bankruptcy?

Most people seek bankruptcy relief to wipe out their debts and get a fresh start. While you can eliminate many debts in bankruptcy, certain obligations (called nondischargeable debts) survive your bankruptcy discharge. Read on to learn more about the difference between dischargeable and nondischargeable debts and how they are treated in bankruptcy.

What Are Dischargeable Debts?

Dischargeable debts are obligations that can be wiped out by your bankruptcy discharge. When you receive your discharge, you are no longer obligated to pay any of these debts and creditors cannot come after you to collect them.

A few examples of dischargeable debt include:

  • credit card debt
  • medical bills
  • personal loans made by friends, family, and others, and
  • past-due utility bills.

Timing and Debt Dischargeability

If a bill comes due after you file for bankruptcy, you might find yourself wondering whether the balance will go away. It’s common to be confused about whether ongoing accounts, such as utility bills, get completely wiped out at the end of the case, or whether the bankruptcy discharge is limited to the portion owed before the filing date.

Post-petition debts—the new bills that you incur after you file your initial bankruptcy paperwork—don’t qualify for discharge. You’ll remain responsible for paying for them. The only type of debt eligible for discharge is “pre-petition debt,” or, debt that existed before you filed your matter.

Example. Suppose that you file a Chapter 7 case. In your bankruptcy schedules, you list your overdue water, sewer, and garbage bill. The Chapter 7 discharge will wipe out any portion of the utility bill account balance that predated your filing. However, you’ll be required to pay any charges that accrued after your filing date.

The same holds true in a Chapter 13 bankruptcy. All pre-petition debts get included in the Chapter 13 plan (the three- to five-year payment plan that you must complete before receiving a discharge). All of your post-petition debts, such as a monthly cell phone bill or a new gym membership, remain your responsibility to pay.

Be aware, however, that when you’re in a Chapter 13 case, unexpected obligations can come up. Not only is this understood, but the court might be willing to adjust your plan payments to accommodate you. To learn about your options, read Post-Petition Debts in Chapter 13 Bankruptcy.

How Are Dischargeable Debts Treated in Bankruptcy?

In most cases, you can eliminate dischargeable debts in bankruptcy without any repayment. However, whether your creditors will receive anything in your bankruptcy will depend on whether you are filing for Chapter 7 or Chapter 13 bankruptcy.

Dischargeable Debts in Chapter 7 Bankruptcy

Most Chapter 7 bankruptcies are no asset cases—there’s nothing for the trustee to sell to pay creditors with. As a result, dischargeable debts are typically wiped out without receiving anything in Chapter 7 bankruptcy.

Further, if there are any proceeds to distribute, general unsecured debts (such as credit card obligations) are the last to get paid and receive a pro-rata share of any money left over after all priority debts (such as alimony, child support, and some taxes) get paid.

However, keep in mind that your discharge only eliminates your liability for these debts. It does not affect liens on your property (such as a mortgage or car lien). As a result, if you stop paying your mortgage or car loan, your lender can still foreclose on or repossess your property even if it cannot sue you personally to collect the debt.

Dischargeable Debts in Chapter 13 Bankruptcy

In Chapter 13 bankruptcy, most dischargeable debts are considered nonpriority general unsecured claims. Depending on your income, assets, and expenses, they typically receive little or nothing through your Chapter 13 repayment plan. And they are discharged upon completion of your plan payments.

However, if a dischargeable debt is secured (such as your car loan), you have two choices. If you want to keep the car, you must continue making payments on it during your Chapter 13 bankruptcy (if you meet certain conditions, you might be able to reduce your principal balance through a Chapter 13 cramdown). Alternatively, you can surrender the car, and discharge your liability for the car loan.

Source: https://www.nolo.com/legal-encyclopedia/what-is-the-difference-between-dischargeable-nondischargeable-debts-bankruptcy.html

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