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DUI Expungement

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An arrest or conviction for driving under the influence (DUI) can have a negative impact on one’s ability to secure a job, obtain a student loan, rent an apartment, or apply for credit, even if it seems unrelated or occurred years ago. State-by-state laws regarding record expungement vary. Some states do not permit expungement of convictions, only arrests that did not result in a conviction. Other states permit expungements, but under specific conditions. Let’s review some fundamental expungement facts and terminology to get you started.

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What is Expungement?

In the eyes of the law, expungement, also known as “expunction,” “sealing a conviction,” or “setting aside a criminal conviction,” effectively conceals a DUI / DWI arrest or conviction. An expunged DUI offense may still be used as evidence of a prior conviction; however, expunged offenses are typically not visible to prospective employers, educational institutions, credit issuers, and other entities conducting background checks.

In certain legal proceedings, such as sentencing for crimes committed after expungement or immigration/deportation proceedings, an expunged conviction that is “under seal” may be considered as evidence of a prior conviction.

Is it possible to expunge any type of DUI conviction?

The ability to expunge an arrest or conviction for drunk driving varies by state and is typically limited to first offenses. Some states only permit expungement of arrests that do not result in convictions or guilty pleas, whereas others permit expungement of the majority of first convictions that do not appear to be part of a criminal pattern. It is always up to the court to determine whether an expungement will be granted.

Juvenile Expungements

Depending on the state and/or county, juvenile DUI arrests and convictions may be subject to special eligibility requirements for expungement.

Expungement Examples

After successfully completing probation for a misdemeanor DUI conviction in California, for instance, you may file a petition for expungement (if applicable). In California, it is sometimes possible to expunge felony DUI convictions, but this often requires additional court procedures, such as reducing the conviction to a misdemeanor.

In contrast, Florida law only permits the expungement of DUI arrests in cases where the charges were dropped, dismissed by the court, never filed, or the defendant was found not guilty. In contrast to many other states, Florida’s Department of Law Enforcement may disclose the existence (but not the contents) of expunged records pertaining to applicants for employment or membership certifications.

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 move 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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Marital Property: Do’s and Don’ts

Marital Property: Do's and Don'ts

You and your partner have likely discussed how you will combine your property if you are planning to get married. For example, one of you may decide to vacate the apartment and host a garage sale to dispose of excess kitchen equipment or furniture. However, it may be prudent to consider how this property will be divided in the event of a divorce, as well as the fundamentals of managing your marital property.

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When a couple divorces, the marital property (that which was acquired during the marriage or was otherwise shared) is divided in accordance with the state’s law regarding the division of marital property. A few states have “community property” laws that result in an approximately 50/50 division of marital assets. When dividing marital property, the majority of states use a “equitable distribution” procedure that takes into account the needs and assets of each spouse.

Regardless of your state’s laws and your family’s unique circumstances, the following tips will assist you in deciding how to manage your marital property most effectively.

The concept of marital property becomes significant upon marriage, despite the fact that the issue rarely arises in everyday life. All possessions and interests acquired by a couple during their marriage are referred to as “marital property.” Most married couples do not even consider understanding or keeping track of their marital property. However, if a divorce becomes a reality, ownership questions arise.

Arizona Marital Property Definition

Arizona is one of the few states that follows a community property approach to classifying marital property, as opposed to the majority of states that use an equitable distribution approach. The term “community property” refers to all property acquired during the marriage that is owned equally by both spouses and therefore will be divided equally upon divorce. In contrast, equitable distribution divides the marital estate in a “fair” manner, giving the court greater discretion to determine what is fair.

A Glance at Arizona’s Marital Property Laws

Statutes are the best source of information, but they are typically not written in a user-friendly manner. Consequently, it can be beneficial to also read a summary of the statute written in plain English. In the table below, you will find an overview of Arizona’s marital property laws as well as links to relevant statutes.

Statute(s)

25-211 et seq., Title 25, Chapter 2, Article 2, Arizona Revised Statutes (Property Rights and Contract Powers)

Is Community Property Acknowledged?

Yes

What is considered common property?

All property acquired by either spouse during the marriage, with the exception of property acquired by only one spouse:

As a gift or bequest; or

After service of a divorce, legal separation, or annulment petition (as long as the petition results in a decree).

What is considered to be separate property?

In addition to the exceptions listed above, real and personal property owned by one spouse prior to the marriage, as well as any rent, profit, or appreciation in value, are considered separate property.

What You Should Do to Manage Marital Property

Consider entering into a prenuptial or premarital agreement prior to marriage to specify which assets are exempt from division in the event of death or divorce.

Do keep accurate and comprehensive books and records to establish the separate nature of any property you wish to keep separate from the marital estate. You may wish to maintain separate ownership of property you owned prior to marriage, as well as gifts or inheritances you receive during the marriage.

If you’re concerned about keeping your separate property in your family (or as your personal asset) after your death or divorce, continue to keep it separate throughout your marriage. This generally means that you should not “commingle” property you owned prior to marriage with property you and your spouse acquire during the marriage, or it may become difficult — if not impossible — to legally determine whether the property in question is separate or marital.

Be aware that the increase in value of nonmarital property may be deemed marital, entitling each spouse to a portion of the increase upon divorce or death of the property owner. This is particularly true if the increase in value (or “appreciation”) is considered “active” as opposed to “passive.” For example, passive appreciation is the increase in value of a bank account due to interest earned or the increase in property value due to standard inflation. Active appreciation, on the other hand, is the result of effort, such as painting a rental property or actively managing a stock portfolio.

Use only your separate property to acquire additional property that you want to be considered separate. In other words, a boat purchased with pre-marriage funds and maintained in a separate account after the marriage is considered separate or non-marital property. However, if your spouse pays for a portion of it or even helps maintain it, the boat may no longer qualify as separate property.

If you wish for the proceeds of any personal injury case won during the marriage to retain their status as separate property, you must keep them separate. The money you receive from a personal injury lawsuit belongs solely to you, with the exception of any portion that reimburses you for lost wages or compensates your spouse for the loss of your services or companionship.

Managing Marital Property: Avoid These Mistakes

If you use separate funds to pay off a joint debt, those funds may lose their separate status.

Do not deposit income earned during the marriage into separate bank accounts. Generally speaking, income earned during a marriage is considered marital property, and depositing that income into non-marital accounts can result in “commingling,” so that the non-marital account is no longer considered separate property.

Even if you intend to keep track of which portion is separate, do not open a joint bank account with non-marital funds. If you want to keep non-marital assets separate, it’s much more prudent to maintain separate accounts.

Do not assume that if you owned property before your marriage, none of it will be considered marital property. For instance, if the value of the home you owned prior to the marriage increases during the marriage due to your and your spouse’s efforts to maintain and improve it, your spouse may be entitled to a portion of that increase.

Do not assume that a business you owned prior to marriage will remain solely your separate property after marriage. If the value of your business or professional practice increases during your marriage due in part to your spouse’s contributions, your spouse may be entitled to a portion of the increase upon divorce or your death. These contributions can be overt, such as bookkeeping or entertaining clients, or covert, such as caring for the home and children so that you can focus on running the business.

Obtain Expert Assistance in Managing Your Marital Property

Generally, marital property is not an issue unless a couple is divorcing, but it could be a factor in a prenuptial agreement or other situations. If you have any legal questions regarding marital property, you should seek professional legal assistance. Find a local family law attorney and obtain peace of mind.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

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As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyers, divorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, and more.

*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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Underage DUI: Zero Tolerance Laws

Underage DUI: Zero Tolerance Laws

You didn’t feel drunk. In fact, your blood-alcohol level was below the legal limit for a standard DUI. The issue is that you were below the legal drinking age. Underage drunk drivers are subject to a different set of legal restrictions. This is a brief introduction to the laws governing underage DUI.

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Definition of Zero Tolerance

In all 50 states and the District of Columbia, it is illegal for anyone under the age of 21 to purchase or possess alcohol. And while driving under the influence of alcohol (normally 0.08 percent blood-alcohol concentration or higher) is illegal for all drivers, all states have so-called “zero-tolerance” laws for underage DUI offenses.

Zero-tolerance laws make it a criminal DUI offense for drivers under 21 to have any amount of alcohol in their system, ranging from 0.00 to 0.02 percent BAC, depending on the state. In light of these laws, even an innocent glass of wine with dinner could result in a DUI charge for a young driver. However, the purpose of these laws is to combat the very real risks associated with underage drinking.

Why Do We Have Zero Tolerance Policies?

According to the National Highway Traffic Safety Administration, nearly one-third of all deaths among 15- to 20-year-olds are caused by motor vehicle accidents, and approximately one-third of these fatalities are alcohol-related. According to the NHTSA, the alcohol involvement rate for young drivers is roughly double that of drivers over 21, and even low levels of underage drinking increase the risk of fatal crashes.

In order to qualify for Federal-Aid Highway Funds, the National Highway Systems Designation Act of 1995 mandated that states consider a BAC of 0.02 percent or less for drivers under 21 to be driving under the influence. To conform, as all states eventually did, they had to designate a BAC of 0.02 percent as a “per se offense.” This means that police are not required to prove intoxication if the driver is above the legal limit.

An NHTSA study comparing the first 12 states to implement zero tolerance laws to 12 other states found that those with the law experienced a 20 percent decrease in fatal nighttime single-car crashes involving drivers under 21. These are the situations where alcohol is most likely to be present. Furthermore, states with underage BAC limits of 0.02 percent or less saw the largest declines in fatal crashes, whereas states with higher BAC limits saw a lesser impact.

In addition to the obvious risks to health and safety posed by underage drinking and driving, DUI offenses can have far-reaching consequences for the future of a young driver. An early conviction for drunk driving can affect both employment background checks and auto insurance coverage.

Speak With One Of Our DUI Attorneys In Scottsdale

(480) 744-7711
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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 move 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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Best Effort Requirement in Chapter 13 Bankruptcy

Best Effort Requirement in Chapter 13 Bankruptcy

What is the Best Effort Requirement of Chapter 13?

The bankruptcy trustee is appointed following the filing of the repayment plan. The trustee and your creditors will review your proposed repayment plan to ensure that it satisfies all bankruptcy requirements. Before being finalized, your repayment plan must also be approved (confirmed) by the court.

Paying your disposable income to nonpriority unsecured creditors (such as credit card companies) in your repayment plan will demonstrate that you are making every effort to repay your debts. After deducting allowed living expenses and mandatory payments, such as secured and priority debt payments, your disposable income is the amount remaining. (Secured debts are backed by collateral, such as a mortgage or an automobile loan. Priority debts are those that warrant advancement to the front of the payment queue. Examples include domestic support obligations and tax debt.)

You will apply your discretionary income to your remaining debt (nonpriority unsecured debt, like credit card balances and medical bills).

What Will I Pay Unsecured Nonpriority Creditors?

  • Using the Chapter 13 Calculation of Your Disposable Income form, you will subtract the following from your income to determine your disposable income:
  • Expenses for living based on national and regional norms, as well as some actual amounts
  • secured payments, such as mortgage or auto loan payments (and any delinquent payments), and
  • Priority debts include arrears on child support and certain tax debts.
  • Over the course of five years, you will be required to pay a minimum of your monthly disposable income to your non-priority unsecured creditors.

Why Will I Be Charged More If I Own a Large Property?

The analysis continues further. In determining whether to confirm your repayment plan, the judge will also consider whether your creditors will receive the same amount through your Chapter 13 plan as they would if you filed for Chapter 7 bankruptcy.

Here is why this is important:

In Chapter 7 bankruptcy, the trustee sells all nonexempt assets (those that are not protected by exemptions). The funds are allocated first to the priority creditors, and then, if anything remains, to the non-priority unsecured creditors.

  • Chapter 13 bankruptcy, on the other hand, allows you to keep non-exempt property. However, your creditors will not permit you to receive a windfall. To ensure that your creditors receive the same amount as they would under Chapter 7, you must pay the greater of:
  • the sum of your total priority debt and your disposable income, or
  • the market value of your taxable property.

Except: If You Were Eligible for Chapter 7

If you qualify for Chapter 7 but file for Chapter 13 for another reason, such as to save your home, you will not be required to calculate a monthly disposable income figure. Your plan payment will be based on your financial situation. The bankruptcy court will typically approve your Chapter 13 plan even if you’re paying non-priority unsecured creditors little or nothing. Additionally, the duration of your plan is reduced from five to three years.

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Driving Under the Influence of Drugs

Driving Under the Influence of Drugs

DUI, or driving under the influence, typically involvesștiintoxication with alcohol. However, alcohol is only one of numerous substances that can impair an individual’s ability to operate a motor vehicle. Driving under the influence of drugs, including both legal and illegal substances, can also result in DUI charges.

Mixing drugs with driving, whether it’s medical marijuana or legally prescribed muscle relaxants, is as illegal as driving under the influence of alcohol and can also constitute a DUI offenseștii.știi.știi. There is no defense to drugged driving charges based on doctor’s orders.

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According to a survey conducted in 2010 by the Substance Abuse and Mental Health Services Administration (SAMHSA), approximately 10 million Americans drove under the influence of illegal drugs during the previous year. In 2009, more than 18 percent of fatally injured drivers tested positive for at least one illegal or prescription drug, per a National Highway Traffic Safety Administration study (NHTSA). According to another NHTSA survey, one in five motorists killed in car accidents in 2009 tested positive for drugs.

Different drugs have different effects on drivers. However, substances that impair judgment, vigilance, concentration, or motor skills are regarded as equally (if not more) hazardous than alcohol.

Assessing Drug Impaired Driving

In all fifty states, it is illegal to operate a motor vehicle with a blood alcohol concentration (BAC) of 0.08 percent or higher. At the time of a traffic stop, it is relatively simple to determine a driver’s blood alcohol concentration (BAC) due to the rapid elimination of ethanol fromștiinștiinthebodyștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștiiștii And since Breathalyzer tests are highly accurate, readings of 0.08 percent or higher frequently result in a guilty plea or conviction for DUI if the traffic stop was conducted according to protocol.

This is not the case for substances other than alcohol.

For instance, the psychoactive component of marijuana (THC) is detectable in a person’s urine or bloodstream for up to four or five weeks after use, and it is impossible to definitively detect impairment at a specific time. Cocaine, on the other hand, is typically eliminated from the body within two days. In a letter to Congress, the NHTSA acknowledged that current knowledge regarding drugs other than alcohol is “insufficient to permit the identification of dosage limits that are associated with an increased crash risk.”

Some jurisdictions employ “Drug Recognition Experts” (DREs) — police officers with specialized training who follow specific guidelines to determine drug impairment in drivers. DREs scrutinize a person’s eye movements, behavior, and other indicators of drug use. The District of Columbia and 44 states have Drug Evaluation and Classification Programs in place to train DREs.

Typically, a urinalysis or a blood sample is utilized to detect the presence of drugs.știinștiinștiinștiiștiinștiiștiiștiiștiiștiiștiiștii

Per se drugged driving laws

15 states have what are known as “per se” drugged driving laws, even though it is more difficult to prosecute drivers accused of driving under the influence of drugs as opposed to alcohol. It is against the law to operate a motor vehicle with any detectable amount of certain drugs in one’s system, according to these DUI laws.

Arizona, Delaware, Georgia, Illinois, Indiana, Iowa, Michigan, Minnesota, Nevada, Ohio, Pennsylvania, Rhode Island, Utah, Virginia, and Wisconsin are the 15 states that have laws against driving under the influence of drugs that apply to all drivers. The remaining 12 states have a zero-tolerance policy for the presence of intoxicating drugs.

North Carolina and South Dakota prohibit drivers under the age of 21 from possessing any detectable amount of an illegal or otherwise prohibited substance. In five states (California, Colorado, Idaho, Kansas, and West Virginia), it is illegal for known drug addicts and regular drug users to operate a motor vehicle.

Intoxicating Effects of Several Illegal Drugs

  • Relaxation, euphoria, disorientation, altered time and space perception, drowsiness, paranoia, image distortion, and a heightened heart rate are the effects of marijuana.
  • Cocaine causes euphoria, excitement, dizziness, increased focus and alertness (initially), confusion and disoriented behavior, irritability, paranoia, hostility, and a heightened heart rate.
  • Methamphetamine causes euphoria, excitement, hallucinations, delusions, insomnia, poor impulse control, an elevated heart rate, and elevated blood pressure.
  • Intense euphoria, drowsiness, relaxation, sedation, disconnection, mental clouding, analgesia, slowed heart rate, nausea and vomiting, and diminished reflexes are the effects of morphine and heroin.
  • Hallucinations, altered mental state, delusions, impaired depth, time, and space perception, hypertension, and tremors are all side effects of LSD.

Prescription & Nonprescription Drugs

Some drugs purchased legally at a pharmacy, whether prescribed by a doctor or purchased over-the-counter (OTC), can be just as dangerous for drivers as alcohol and can result in a DUI. If you are uncertain about a drug’s potential to impair, consult the label or your pharmacist.

The following prescription and over-the-counter medications can impair driving:

Some sedating antidepressants cause impairment comparable to that of a drunk driver.

  • Valium: 10 mg of the popular tranquilizer can cause impairment comparable to 0.10 percent blood alcohol content.
  • Many antihistamines reduce reaction time and impair coordination.
  • Numerous over-the-counter decongestants can induce drowsiness, anxiety, and vertigo.
  • Even in the morning, the residual effects of sleeping pills can impair driving.
  • Hydrocodone, the active ingredient in Vicodin, is comparable to opiates and causes impairment comparable to morphine and codeine (oxycodone has similar effects).

Medical Cannabis

DUI charges may still be filed against motorists who reside in states that permit the medical use of marijuana with a valid doctor’s recommendation. Consequently, if the officer and/or drug recognition expert have collected sufficient evidence of marijuana impairment, a valid medical exemption cannot be used as a defense. In this regard, medical marijuana is identical to other prescription drugs that can cause impairment.

Are you under arrest for driving while impaired by drugs? Obtain Legal Aid

DUI charges involving alcohol are easier to prove because the devices used to measure blood alcohol concentration (BAC) are fairly accurate. However, the situation becomes more complicated when other substances are involved. As it is difficult for officers to determine the level of impairment at any given time, a skilled attorney can often provide an effective defense against such charges. If you have been charged with driving under the influence of alcohol or drugs, it is in your best interest to contact an experienced DUI lawyer in your area as soon as possible.

Need A Criminal Defense Lawyer In Scottsdale or Phoenix?

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Canterbury Law Group’s criminal defense lawyers in Phoenix and Scottsdale will defend your case with personal attention and always have you and your best interests in mind when offering legal solutions. Call today for an initial consultation! We handle criminal defense cases in all areas of Phoenix including Mesa, Tempe, Chandler, Maryville, Apache Junction, and more.

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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Community Property

Community property issues can arise during divorce proceedings and after a spouse's death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt. In some states, property acquired during the marriage is considered "community" property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat "community property," also known as "marital property," will determine what happens to debt or assets upon divorce. Common Property Statutes State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair. Alaska is distinctive in that divorcing couples have options. Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets "equally" (50/50), while others, such as Texas, divide them "equitably." Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt. Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married. Compared to separate property, community property In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce. The following are examples of community property: Earnings of each spouse during the marriage Home and furnishings acquired with marital funds during the marriage (reword) Investments and operations of a company generate interest income. The mortgage and family home Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse. These are examples of separate property: Bank accounts that are held independently Separately held inheritances acquired during a marriage presents to either partner Personal injury compensation Any property acquired after the dissolution of a marriage is considered separate property. Courts have also categorized certain properties as "partially" or "quasi" community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances. Considerations a Judge Might Employ to Determine Property Division A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty. Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary: One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.). Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued. Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division. Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division. Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one's ability to work or receive retirement benefits. The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split. The likelihood that one of the spouses will receive a substantial inheritance. Gifts to a Spouse: After a divorce, gifts are typically converted to separate property. A spouse who obtains primary custody of children under the age of 18 may affect the division of property. Consult with a Divorce Lawyer Concerning Community Property Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

Community property issues can arise during divorce proceedings and after a spouse’s death. When spouses divorce or pass away, they are frequently left with the arduous task of dividing property and proceeds acquired during the marriage. This may include tangible assets (such as stocks, bonds, and legal title), as well as intangible assets (such as automobiles, furniture, paintings, and family homes) and debt.

In some states, property acquired during the marriage is considered “community” property and is frequently divided 50/50 in the event of a divorce. The manner in which states treat “community property,” also known as “marital property,” will determine what happens to debt or assets upon divorce.

Common Property Statutes

State laws govern community property, and not all states have such laws on the books. Community property laws in nine states (and Puerto Rico) govern the division of debt and property in a divorce. Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin are included in this group. In such states, property is typically divided equally, whereas in all other states, distribution is determined by a judge based on what is equitable or fair.

Alaska is distinctive in that divorcing couples have options.

Despite the fact that each state determines how property is divided upon divorce, the laws may vary slightly. For instance, some states, such as California, divide debts and assets “equally” (50/50), while others, such as Texas, divide them “equitably.” Even in community property states, courts in jurisdictions that apply the equitable distribution doctrine consider numerous factors, some of which justify unequal distribution of property or debt.

Because these laws affect property and other valuable assets, they can have a profound impact on the future of a spouse who is forced to share a portion of an asset that was previously considered separate property. In the absence of a prenuptial agreement between the parties, property distribution will be governed by the law of the state in which the couple was married.

In most cases, property acquired during a marriage belongs to both partners. This is particularly true in states where community property laws exist. Despite the fact that not all states have such laws, property acquired during the duration of a marriage is distributed equally upon divorce.

The following are examples of community property:

Earnings of each spouse during the marriage

Home and furnishings acquired with marital funds during the marriage (reword)

Investments and operations of a company generate interest income.

The mortgage and family home

Separate property, on the other hand, is that which was owned prior to the marriage, was inherited or received as a gift during the marriage, or was earned after the date of separation by either spouse.

These are examples of separate property:

  • Bank accounts that are held independently
  • Separately held inheritances acquired during a marriage
  • presents to either partner
  • Personal injury compensation
  • Any property acquired after the dissolution of a marriage is considered separate property

Courts have also categorized certain properties as “partially” or “quasi” community property. This includes assets that would have been considered separate property at the beginning or during the marriage, but have become marital property as a result of co-mingling or other circumstances.

Considerations a Judge Might Employ to Determine Property Division

A judge may consider several factors when determining how to divide property acquired during the marriage. A judge will consider 1) the earning capacity of each spouse, 2) which parent is the legal custodian of the children (if any), and 3) the existence of fault grounds such as adultery or cruelty.

Consequently, even in states with community property, property may not always be divided 50/50. Instead, courts will consider the following factors to determine whether an unequal property division is necessary:

  • One spouse may receive a larger share of the marital assets if fault-based grounds for divorce exist (such as adultery, cruelty, etc.).
  • Loss of Continuing Benefit: Whether one spouse will incur the loss of compensation they would have received had the marriage continued.
  • Disparity of Earning Capabilities: Whether disparities exist between incomes, earning capacities, and business opportunities that may impact property division.
  • Health and Physical Conditions: Whether the physical health or condition of the spouses may impact the property division.
  • Age Disparities: Whether there is a disparity between the ages of the spouses that could affect one’s ability to work or receive retirement benefits.
  • The size of the estate can have an impact on the distribution of property. The larger the estate, the more likely the court is to favor a 50/50 split.
  • The likelihood that one of the spouses will receive a substantial inheritance.
  • Gifts to a Spouse: After a divorce, gifts are typically converted to separate property.
  • A spouse who obtains primary custody of children under the age of 18 may affect the division of property.

Consult with a Divorce Lawyer Concerning Community Property

Legal issues surrounding a divorce can be overwhelming in number. Property matters, alimony, child custody, child support, division of retirement benefits accrued during the marriage, visitation rights, and other legal matters must all be handled with care. Finding the appropriate divorce attorney is crucial. Contact a local divorce attorney with experience in your area today.

Divorce & Legal Separation, Divorce Attorney, Divorced Parents, Scottsdale Attorneys, Scottsdale Divorce
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Creditor Objection to Chapter 13 Plan

Creditor Objection to Chapter 13 Plan

Discover what it means if the bankruptcy trustee objects to your Chapter 13 plan’s confirmation and what you can do.

If you file for Chapter 13 bankruptcy and your proposed repayment plan violates all applicable bankruptcy laws, the bankruptcy trustee may object to your plan’s confirmation (approval). The following sections will discuss why the trustee may object to your Chapter 13 plan and your options if the trustee does object.

The Chapter 13 Plan and Confirmation by the Court

Chapter 13 bankruptcy is frequently referred to as a reorganization bankruptcy due to the fact that you repay some or all of your debts via a repayment plan. When you first file for Chapter 13, you present the trustee, your creditors, and the court with an initial repayment plan. After filing your case, you must immediately begin making plan payments to the trustee (your first payment is typically due within 30 days). However, your plan does not become permanent until it is confirmed by the court (which can take up to several months). (For more information on the Chapter 13 repayment plan, click here.)

Generally, unless the trustee or one of your creditors objects, the court will approve your plan. However, if you fail to submit a workable plan that complies with all applicable bankruptcy laws, the trustee may object to its confirmation.

When a Trustee May Disagree with Your Chapter 13 Plan

Numerous requirements must be met in order for the court to approve your proposed Chapter 13 plan. Generally, the trustee will oppose your plan if:

  • In your plan, you do not pay all of your disposable income to unsecured creditors (learn about how your disposable income affects your Chapter 13 plan)
  • You lack the financial means to make your plan payments.
  • Your plan does not pass the test of being in the best interests of creditors (which states that your plan must pay your unsecured creditors at least an amount equal to what they would have received in Chapter 7 bankruptcy)
  • Your plan excludes certain debts that you are required to repay (learn about debts you must pay back in your Chapter 13 plan)
  • Your plan is either too short or too long in duration (learn about how long your Chapter 13 plan must last)
  • You do not provide the trustee with all of the necessary supporting documents (such as tax returns or pay stubs).
  • you are in arrears with your plan payments, or
  • Otherwise, your proposal is not made in good faith. (Learn about the Chapter 13 good faith requirement.)

What Happens If Your Chapter 13 Plan Is Rejected by the Trustee?

One of the trustee’s primary responsibilities in Chapter 13 bankruptcy is to maximize payment to your unsecured creditors. This means that the trustee will almost always argue that you should be contributing more to your Chapter 13 plan. As a result, trustee objections are extremely prevalent in Chapter 13 bankruptcy. (Learn more about the Chapter 13 trustee’s role.)

If the trustee wishes to object to your plan, he or she will typically file a written objection to confirmation with the court, outlining the reasons why the court should reject your proposed plan. If you do not respond to the trustee’s objection, the plan will most likely be denied confirmation by the court. If you wish for the court to approve your plan following the trustee’s objection, you must file a written opposition explaining why you believe your plan is ready for confirmation.

Your Alternatives If the Trustee Disapproves of Your Plan

In the majority of cases, you can:

  • rectify your errors
  • submit a revised plan, or
  • To resolve the objections, negotiate with the trustee.

However, if you are unable to reach an agreement with the trustee, you must be prepared to argue your case before a judge during the Chapter 13 confirmation hearing (discussed below).

Confirmation Hearing under Chapter 13

Following your Chapter 13 bankruptcy filing, the court will schedule a confirmation hearing to determine whether or not to approve your plan. If no objections are raised by the trustee or your creditors to your proposed plan, the court will confirm it at the hearing. (Learn more about the confirmation hearing for Chapter 13 bankruptcy.)

However, if the trustee files an objection to your plan and you are unable to resolve it prior to the confirmation hearing, you must explain to the judge why you believe your plan should be confirmed. Following your presentation, the trustee will have an opportunity to make an argument.

The judge will decide whether or not to confirm your plan after hearing both sides. If the judge determines that additional evidence is required, he or she may also continue the hearing or remand the case for trial or evidentiary hearing.

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Field Sobriety Tests

Field Sobriety Tests

Not every city has an excellent public transportation system for returning residents to their homes following a night out. However, self-driving home after a night of drinking because your designated driver abandoned you will not win you points with a judge. If you see those unmistakable red and blue lights in your rear view mirror after drinking, you’re probably curious about the types of tests officers use to determine if you’re driving while impaired. The following section will discuss field sobriety tests.

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The Fundamentals of Field Sobriety Tests

Field sobriety tests, also known as roadside sobriety tests, are used to enforce DUI laws and are typically used in conjunction with Breathalyzer tests. Typically, a police officer will administer a three-part field sobriety test following a traffic stop in which the officer suspects the motorist may be intoxicated or otherwise impaired. These tests enable an officer to observe a suspect’s balance, physical ability, and level of attention, among other factors, in order to determine whether the suspect is driving while intoxicated.

Officers record the suspect’s performance on a field sobriety test; such tests have generally been upheld on appeal in DUI cases. All field sobriety tests are designed to determine whether a police officer has probable cause to arrest someone for driving while intoxicated.

Field Sobriety Tests That Are Standardized

The National Highway Traffic and Safety Administration’s (NHTSA) Standardized Field Sobriety Test (SFST) consists of the horizontal gaze nystagmus (HGN), walk-and-turn (WAT), and one-leg stand (OLS):

Horizontal Gaze Nystagmus: This term refers to the natural jerking of the eye that occurs when the eye is directed to the side. However, when someone is intoxicated, this jerking (or nystagmus) is exaggerated. Officers look for three indicators of impairment in each eye: an inability to smoothly follow a moving object; distinct eye jerking when the eye is at its maximum deviation; and eye jerking within 45 degrees of center.

The purpose of this test, which is easily performed by the majority of unimpaired individuals, is to assess the suspect’s ability to complete tasks with divided attention. This is administered by instructing the suspect to take nine steps, heel to toe, in a straight line; turn on one foot; and then repeat in the opposite direction.

Suspects are instructed to stand with one foot approximately six inches off the ground and count for thirty seconds. Swaying while balancing, balancing with one’s arms, hopping, or putting one’s foot down all indicate potential impairment.

According to a 1998 study cited by the NHTSA, the three components of the SFST accurately indicate alcohol impairment in 91 percent of all cases and 94 percent of cases when explanations for some of the false positives are accepted. Suspects who fail the field sobriety test are typically subjected to a breathalyzer test to determine their blood alcohol concentration prior to arrest.

Field Sobriety Tests That Are Not Standardized

Other non-standardized field sobriety tests may include the following: standing with feet together and tipping the head backwards; counting the number of fingers raised by an officer; reciting the alphabet; counting backwards; standing and leaning back to look up at the sky with arms to the side; or closing the eyes and touching the nose with a finger.

Speak with a Lawyer to Gain a Better Understanding of Field Sobriety Tests

The field sobriety test is one of several techniques that police officers use to establish probable cause for a DUI arrest. However, if the investigation was not conducted properly, there is a possibility that the charges could be dropped in certain circumstances. It is critical to obtain critical feedback from a legal professional for this and other reasons. Speak with an experienced DUI attorney near you today to learn more.

Speak With One Of Our DUI Attorneys In Scottsdale

(480) 744-7711
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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 move 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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Divorce Property Division

Divorce Property Division

Apart from child custody, one of the primary concerns of a divorcing couple is what to do with shared property. Who is going to get the house? Who is going to get the dog? The answer is contingent upon the state’s divorce laws and the spouses’ ability to reach an agreement.

This article addresses some of the most frequently asked questions about divorce property division.

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When We Divorce, What Happens to Our Property and Debt?

The simplest way to deal with property during a divorce is to agree on how to divide it between you. When divorcing couples are unable to agree on how to divide marital property amicably, the matter may be brought before a judge in family court.

Under state law, property division is generally handled in two ways:

Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin, as well as the US territory of Puerto Rico, are community property states. This means that property acquired during the course of the marriage is considered community property (although there can be exceptions). Typically, community property is divided evenly during a divorce, while separate property is retained by its owner.

Equitable Distribution: In general, all other states adhere to equitable distribution. Rather than simply dividing the property’s value in half, a judge (or the couple themselves) will determine what is equitable or fair. In practice, this may mean that the higher-earning spouse receives two-thirds of the property, while the other spouse receives only one-third.

Take note that when courts divide property, this does not necessarily mean that the property is split literally (or physically). A court will calculate the total value of the marital estate and allocate a percentage to each spouse. Each spouse must secure that amount in their own unique way, which may include selling a home, transferring a portion of an IRA, or buying out a spouse’s interest in a business. These are the property division details that a divorce attorney assists you in determining.

What Is the Distinction Between Community and Private Property?

Community Property: Unless otherwise specified, this term refers to all property, assets, and debt acquired during the marriage. For example, a loan may have been taken out specifically for one person. It could be their own debt.

Separate Property: This term refers to property acquired prior to the marriage, as well as gifts, court awards, inheritance, and pension proceeds received during the marriage. Separate property acquired remains separate property (e.g., a boat bought with inheritance money).

Be aware that separate property can become community property if it is commingled. For instance, an inheritance used to pay off a mortgage, or a business started prior to marriage and sustained by the marriage.

Property acquired with commingled funds: If you acquire or maintain property using a combination of separate and community funds, a court is likely to determine that it is community property. If you wish to keep your property separate, you must work diligently to do so; otherwise, it will become commingled and converted to community property.

Who Gets the House in Property Division?

Who gets the house is a matter of circumstance. If there are no children, courts distribute the marital home differently.

Neither party has the legal right to demand the other’s departure, but one partner can always make the request. That said, it may be illegal for them to lock you out before the divorce is finalized, while you still own the home. You may contact the authorities if they do so. The obvious exception is in cases of domestic violence in which one partner has been served with a restraining order.

Caution: Unhappy relationships can become extremely toxic at times. Take care not to fabricate domestic violence in order to evict the other partner. If the judge believes you’ve done this, you could jeopardize your right to marital property, including ownership of the house.

If you and your spouse are unable to agree on who gets the house, the court will make the decision based on its rules, state law, and the type of property system in your state.

If you have children, the parent who is responsible for the majority of child rearing typically retains the marital home.

If one partner purchased the house with their own money and there are no children, they can generally keep it and require the other to vacate.

Need a Legal Separation Lawyer in Scottsdale or Phoenix?

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As family court lawyers, we have built a network of Arizona mediators, attorneys, tax specialists, estate planners, financial planners, child specialists, real property appraisers, adult and child therapists and parenting coordinators who are here for you if you ever need them. Our lawyers, divorce mediators and collaborative divorce attorneys in Scottsdale are here to make your divorce less stressful and keep you in control and the costs contained. Call today for an initial consultation at 480-744-7711 or [email protected]. Our family lawyers can also help with divorce litigation, child custody, legal guardianship, paternity, prenuptial agreements, and more.

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

Divorce & Legal Separation, Divorce Attorney, Divorce attorneys Scottsdale
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What Happens If You Don’t Make Your Chapter 13 Plan Payments?

What Happens If You Don't Make Your Chapter 13 Plan Payments?

Defaulting on your Chapter 13 plan (failing to make payments) has a number of unfavorable consequences. This may result in your creditors obtaining court permission to foreclose on your home or repossess your car. Alternatively, the court may dismiss your case or never approve it at all. Discover some of the potential consequences of failing to make a Chapter 13 repayment plan payment, as well as options for resolving your bankruptcy.

After you file for bankruptcy, the bankruptcy court will determine whether your proposed repayment plan is feasible. Even though this “confirmation” (approval) process can take several months, you will begin making payments approximately one month after filing and will maintain current monthly plan payments until confirmation. If you do not keep up with your plan payments, your bankruptcy case will be dismissed.

Confirmations are frequently delayed when a trustee or creditor objects to the proposed Chapter 13 plan at the outset. If the confirmed amount is greater than the agreed-upon three- or five-year repayment period, the plan payment will be adjusted to ensure that you can complete the plan within the agreed-upon three- or five-year repayment period.

Creditors Could Be Exempt From the Automatic Stay

When you file for bankruptcy, an automatic stay is triggered. Except in limited circumstances, the automatic stay prohibits creditors from initiating or continuing collection activities (such as foreclosure or repossession) without first obtaining permission from the bankruptcy court. Due to the fact that the majority of your creditors will be paid through the Chapter 13 plan, they may seek relief from the automatic stay (permission to resume collection activities) if you fall behind on your plan payments. The request is made through the filing of a motion to lift the stay.

You Might Have Your Chapter 13 Bankruptcy Dismissed

Even if the court has already confirmed your case, you run the risk of having your case dismissed if you fall behind on your Chapter 13 payments. The bankruptcy trustee will petition the court to dismiss your case for failure to adhere to repayment plan requirements, and if granted, the court will dismiss your case without granting you a discharge of your debts (qualifying debts will remain unaffected).

What Are Your Chances of Avoiding Bankruptcy?

Financial difficulties during the Chapter 13 process are not uncommon. Even if you fall behind on your Chapter 13 payments, your case will not be automatically dismissed. You will still have options for resolving your bankruptcy and regaining possession of your property.

Eliminate Your Default

Even if the Chapter 13 trustee requests that your case be dismissed, you may still petition the court for additional time to cure (catch up on) your default. This is the simplest option if you missed a few payments due to an emergency but are now back on track and ready to begin repaying your debts. The majority of trustees and judges will grant you additional time if you demonstrate that you are capable of making up for missed payments.

Make Changes to Your Chapter 13 Plan

If your circumstances have changed since you filed bankruptcy (for example, if your income has decreased as a result of a layoff), you may petition the court to modify your plan and lower your monthly payments. This, however, may not be possible if the plan is solely used to pay priority debts and secured debts on property you do not wish to surrender. Due to the fact that these debts must be paid in full, the court will be unable to reduce your Chapter 13 plan payments.

Restore Your Bankruptcy Under Chapter 13

Even if the bankruptcy is dismissed by the court, you may be able to reinstate your case. However, you will typically be required to do so immediately following your dismissal, and you will be required to bring your plan payments current.

Convert to Chapter 7 or Obtain an Accelerated Discharge

Additionally, you may be able to convert your Chapter 13 bankruptcy to a Chapter 7 (in which case you will receive a discharge without making any plan payments). To do so, you must demonstrate that you qualify for a Chapter 7 bankruptcy because you are no longer able to afford a Chapter 13. However, keep in mind that Chapter 7 bankruptcy does not allow you to discharge priority debts or cure arrearages, so converting may not be in your best interest.

Similarly, you may file for a Chapter 13 hardship discharge early. You would, however, be subject to the same restrictions as Chapter 7.

Represent Yourself in a Chapter 13 Bankruptcy

In the majority of cases, you can immediately re-file a Chapter 13 bankruptcy following dismissal. However, you may be prohibited from refiling for six months if you violated court orders or voluntarily dismissed your prior case, particularly if a creditor obtains relief from the stay. These types of filing prohibitions occur when the court “with prejudice” dismisses your case. Additionally, if you file a subsequent bankruptcy within a year of your previous one, the automatic stay will be limited to 30 days, and you will need to petition the court to extend it.

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